Ms. Martin has personally experienced employment discrimination and injustice in the courts -- not just
for her clients, but for herself, as a plaintiff.
As a law professor at Howard University, Prof. Martin was stalked by a delusional, homeless, serial
stalker of African-American female professors. The stalker was searching for the physical embodiment
of his "fantasy," or ideal "wife" --modeled after a fictional female character, Geneva Crenshaw, in a
book, And We are not Saved, written by the renowned Professor Derrick Bell. Harrison pursued
women who fit the "profile" of the fictitious Geneva Crenshaw. Instead of following its own security
procedures to ban the stalker from entering the law school buildings, Howard responded to Prof. Martin’
s requests for protection by refusing to renew her teaching contract. She sued Howard for sexual
harassment/hostile work environment and retaliation for reporting sexual harassment, in violation of Title
VII of the Civil Rights Act of 1964, which prohibits discrimination on the basis of sex/gender, as well as
race, color, ethnic origin and religion. Martin v. Howard University is the first to present the issue of
"gender profiling" or "working while female" in the employment context.
WATCH a television documentary about this case, on the Insider Exclusive website, with producer/host
Steve Murphy, below.
To post comments about the documentary and/or the case, go to http://www.youtube.com/watch?
v=MxyzwRGYIgA&feature=channel_page and http://alexisamoore.blogspot.com/2009/02/watch-tv-
documentary-on-federal-case.html
Ms. Martin was interviewed by Sky Radio, as part of its "Salute to Women in Leadership," summary in
Time Magazine, Global Edition, December 15, 2008. Hear her interview at http://www.skyradionet.
com/americanbiz.cfm. The interview was aired on American Airlines from December 16, 2008 through
January 31, 2009. Coincidentally, January was National Stalking Awareness Month; her interview was
particularly timely, then, since she is discussing a workplace stalking case -- her own litigation against
Howard University Law School, where she was a law professor.
Ms. Martin also discusses the case on ABC News Radio's "The Law Business Insider." which recognized
her as one of "America's Premier Lawyers." Hear her interview at http://behindtheheadlines.tv/index.php?
option=com_content&view=article&id=174:hlln-sorkin-dawn&catid=44:apl&Itemid=119.
For information of Howard's continued lack of security on campus while campus crime, including sexual
assault, increases, see http://www.myfoxdc.com/myfox/pages/ContentDetail?contentId=7525274. For
Howard's own report of crime on its campus, see
http://www.howard.edu/services/campuspolice/Statistics/default.htm and http://www.howard.
edu/services/campuspolice/documents/ANNUALREPORT20062Bedit..pdf.
2010 STATUS OF CASE
Currently pending before the Court is Ms. Martin's February 2, 2009 Rule 60(B) Motion for Relief from
Judgment, requesting a new trial, based on the Supreme Court's ruling in Crawford v. Nashville, which
was decided while Martin v. Howard was in the appellate process. The Supreme Court's decision in
Crawford clarified that it is the court's responsibility to determine whether an employee engaged in
"protected activity" under Title VII of the Civil Rights Act of 1964, when she complained to her
employer of workplace conduct that constitutes "sexual harassment."
Ms. Martin filed this motion more than a year ago, but the Court has not addressed it -- even though it is
unopposed. Howard has never filed an Opposition to this motion, asked the Court for an extension of
time to respond to the motion, or filed any document arguing that Ms. Martin has incorrectly construed
Crawford or its relevance to her case.
In her pending Rule 60(B) motion, Ms. Martin argued that the trial court erroneously submitted this
question to a jury and also failed to provide the jury with proper legal instruction on the definition of
sexual harassment -- even after the jury sent the judge a note asking for more instruction on the
definition of sexual harassment under Title VII. Once this error is corrected and the improper jury
question stricken, Ms. Martin would prevail on her sexual harassment/hostile work environment claim,
based on the jury's answers to the remaining questions, which were: 1) the harassment that Prof. Martin
endured in her workplace was severe and pervasive, creating a hostile work environment for her; and 2)
Howard failed to take reasonable steps to end the hostile work environment. Once it is established that
Prof. Martin engaged in "protected activity" when she complained of the stalker on campus, the
remaining questions regarding her retaliatory non-renewal should proceed to a new trial before a jury.
There are 2 other issues pending before the trial court: 1) The Court has held in abeyance -- since 2001
-- the mandatory Rule 37 sanctions -- of more than $364,000 -- that Ms. Martin is entitled to, from
Howard University, for its violation of discovery rules that delayed this litigation by at least 3 years; and
2) Howard's request that Ms. Martin pay to it nearly $10,000 as reimbursement for its litigation costs.
(Out of pocket costs, for deposition transcripts, photocopying and similar expenses are distinguished
from attorneys' fees. Attorneys' fees are only awarded to Defendants when the Plaintiff has filed a
frivolous lawsuit and the Court intends to punish him/her for filing it). Howard has never opposed the
Rule 37 sanctions or claimed that Ms. Martin is not entitled to it, based on hours spent on legal work to
obtain the discovery, nor has it ever challenged her entitlement to the hourly rate she has claimed. The
court placed this issue in abeyance, in a May 2001 decision, without explanation. Ms. Martin has
repeatedly asked the Court to take this issue out of abeyance and award her the compensation for
Howard's discovery violations that the Court's Rule 37 requires be paid. The Court has not responded to
any of her repeated requests in the past 9 years.
HOWARD'S CONTINUED ANTI-CIVIL RIGHTS COURT FILINGS AND REFUSAL TO
ADDRESS STALKING, SEXUAL HARASSMENT AND SAFETY ON CAMPUS
Howard University litigated this case for eleven years, under the authority of former University President,
H. Patrick Swygert, but now, under the present President, Sidney Ribeau.
Instead of protecting one of its own law professors from a serial campus stalker roaming freely through
the law school building --her workplace -- and fairly processing her application for renewal and/or tenure
track placement, Howard failed to implement its own campus banning procedures to keep this known
stalker out of the law school. Howard's administration then rejected Prof. Martin's applications for
renewal. Instead of doing anything to "right" these wrongs over the past 11 years, Howard has enlisted a
battalion of outside attorneys, paying high priced, wealthy, national employment discrimination defense
firms, with an arsenal of unlimited resources, to destroy her career and reputation. Ms. Martin had
twenty years of experience as a civil rights lawyer, in this nation's highest civil rights agencies and had
outstanding academic credentials, since she graduated from an Ivy League college and a top ten law
school. See DawnMartinbio.
In 1998, Ms. Martin began her career again, from scratch, at age 41. In 2000, she established her own
law firm to represent plaintiffs and provide consulting advise for employers who genuinely want to
establish employment policies that comply with the law.
Howard's own Faculty Senate called for Swygert's resignation, accusing him of financial and academic
mismanagement rising to "an intolerable condition of incompetence and dysfunction at the highest level."
See Washington Post April 28, 2007 article, "Howard's President to Retire Next Year; Faculty had Called
for his Removal." See also Wikipedia on Howard University. This case is a prime example of President
Swygert's financial and academic mismanagement, as well as a betrayal of Howard's civil rights legacy.
Under President Swygert, Howard further enriched at least four wealthy law firms that defend employers
in employment discrimination cases and set precedent that harms civil rights plaintiffs -- particularly
African-Americans, other minorities and women. Howard has, no doubt, paid millions of dollars to these
outside law firms to litigate this case alone, rather than restore to the faculty a professor who was much
loved by her students and whom Howard acknowledges was a very good professor.
Despite this gross mismanagement, Patrick Swygert is now teaching at the law, beginning with the 1009-
2010 academic year! Perhaps more amazingly, Alice Gresham Bullock is now the Chairperson of the
Appointments Committee! It is one thing to say that Howard's former administrators made some terrible
mistakes eleven years ago, but quite another to reward the perpetrators of these mistakes and place them,
once again, in positions to do harm. It is further a betrayal of Charles Hamilton Houston's vision of
Howard to exemplify and produce "social engineers for justice," rather than being a "parasite on
humanity." Howard is providing million of dollars to firms that by Charles Hamilton Houston's definition,
would be worse than "parasites" that do nothing to further social change. Howard has hired the firms
that fight social change and equality, making their living opposing civil rights plaintiffs filing employment
discrimination; and Howard is paying these huge, anti-civil rights firms with money provided by Howard
alumni, taxpayers funds, and private donations intended to prove educational opportunities and standards
of excellence for Howard students. The US Government contributes approximately $235 million to
Howard annually. See Wikipedia on Howard University. Howard alumni, contributors, the public and
Congress should be demand to know how much Howard paid these outside law firms and how these
expenditures, and the anti-civil rights arguments made by these firms in their filings can be justified, in
Howard's name.
PETITION BEFORE THE U.S. SUPREME COURT
Ms. Martin's asked the United States Supreme Court to review her case. See December 15, 2008 Press
Release, Petition for Supreme Court Certiorari, Reply to Howard's Opposition to Petition for Certiorari,
and Petition for Rehearing. The Supreme Court initially declined to review the case, but, nine days later,
the Court decided Crawford v. Metropolitan Government of Nashville and Davidson County, Tenn., -- U.
S. --, 2009 WL 160424 (U.S.) (2009), a Title VII case, like Martin, involving sexual harassment and
retaliation for opposing sexual harassment. On February 9, 2009, Ms. Martin filed a motion to
supplement her previous filings to rely on the Court's controlling decision in Crawford. If the Court
reviews Martin under its holding in Crawford, it should reverse the court ruling and vacate the jury
verdict, which was based on improper legal instructions from the trial judge.
WEBSITES URGING SUPREME COURT REVIEW/DISCUSSING SIGNIFICANCE OF CASE
See recent discussions of the importance of this case to all working women and to stalking victims at:
http://www.womensenews.org/article.cfm/dyn/aid/3880
http://alexisamoore.blogspot.com/2009/02/watch-tv-documentary-on-federal-case.html
http://alexisamoore.blogspot.com/2009/01/its-not-end-of-line-tomorrow-no-matter.html
http://peace4missing.ning.com/group/domesticeviolence/forum/topic/show?id=2153128%3ATopic%
3A34467&xgs=1
http://alexisamoore.blogspot.com/2008/12/dawn-v-martins-pursuit-of-justice-for.html (comments posted)
http://lawprofessors.typepad.com/adjunctprofs/2008/11/cert-petition-p.html
http://alexisamoore.blogspot.com/2008/11/111408-us-supreme-court-will-decide.html
http://womeninbusiness.about.com/od/smallbusinesslegalissues/a/martinvhoward.htm,
comments uploaded on
http://womeninbusiness.about.com/b/2008/05/03/law-establishes-women-can-be-fired-for-being-stalked-
by-a-non-employee-at-work.htm#gB;
http://www.illinoissexualharassmentattorneyblog.com/2009/01/sexual_harassment_issues_to_be.html
http://74.125.95.132/search?q=cache:plhPAjbBSo4J:kaauwpassions.blogspot.com/2008/10/supreme-
court-hears-harassment-case.html+%22Martin+v.+Howard+University%
22&hl=en&ct=clnk&cd=109&gl=us
http://74.125.45.132/search?q=cache:5wobB-suYSIJ:blog.lib.umn.edu/lawlib/lexlibris/+%22Martin+v.
+Howard+University%22&hl=en&ct=clnk&cd=23&gl=us
Womanist Musings at http://74.125.45.132/search?q=cache:4YdYu_tMx0IJ:www.womanist-musings.
com/2008/11/can-woman-be-fired-from-her-job-for.html%3FwidgetType%3DBlogArchive%
26widgetId%3DBlogArchive1%26action%3Dtoggle%26dir%3Dclose%26toggle%3DYEARLY-
1199163600000%26toggleopen%3DMONTHLY-1228107600000+%22Martin+v.+Howard+University%
22+and+%22H.M.%22&hl=en&ct=clnk&cd=4&gl=us
http://alexisamoore.blogspot.com/2008/08/working-while-female-supreme-court.html;
http://alexisamoore.blogspot.com/2008/05/law-professor-will-ask-us-supreme-court.html
http://appetiteforequalrights.blogspot.com/2008/05/no-justice-for-stalking-victims.html;
http://www.feistyaphrodite.com/2008/06/law-professor-seeking-us-supreme-court-reversal-that-holds-
woman-can-be-fired-for-being-stalked-at-workplace
The National Association of Women Lawyers ("NAWL"), posting its Amicus Brief at
http://www.abanet.org/nawl/publicservice/home.html,
The American Association of University Women (AAUW) Legal Advocacy Fund,
http://caonlinelaf.blogspot.com/2008/05/gender-profiling.html,
http://twvblog.blogspot.com/2008/05/in-support-of-dawn-v-martin-and-her.html,
http://taasa.org/taasa_blogs/?p=381#comments;
http://remodel4life.blogspot.com,
http://alexisamoore.blogspot.com/2008/05/martin-v-howard-university-personal.html.
http://www.justicewomen.com/archives/2008/25-May-2008_to_01-Jun-2008.php
www.hklaw.com/id24660/PublicationId1663/ReturnId31/contentid47645 - 53k (this is a website of a
major employer defense firm, which also represents Howard University on other cases, though not in
this case)
http://www.venable.com/docs/pubs/761.pdf (this major employer defense law firm is actually THE
PRIMARY OUTSIDE LAW FIRM that has been defending Howard in this case since 2002 --though it
was not defense counsel in this case when it posted this summary of the case in 1999)
http://murphymilanojournal.blogspot.com/2008/11/can-woman-be-fired-from-her-job-for.html
Martin v. Howard University is also cited in numerous treatises, law review articles and websites, dating
back to 1999.
http://www.washingtoncitypaper.com/blogs/sexist/2008/11/03/howard-stalker-case-could-go-to-
supreme-court/
THE BIZARRE FACTS OF STALKING AND EMPLOYER RETALIATION
Stalked by a Delusional, Serial Campus Stalker at the Law School
On November 20, 1997, Prof. Martin received Harrison's letters and telephone message, stating that he
needed her "more than anything" and hoped that she was the "wife" he envisioned. Prof. Martin reported
Harrison's harassment to the Law School Dean's Office, the only Howard Campus Security officer on
duty on the Law School Campus (located at Connecticut and Van Ness Avenues, not on the Georgia
Avenue main campus), Officer Sirleaf. The Dean's office refused to assist in her filing a criminal
complaint, but suggested that she file one on her own. In order to be taken more seriously by the police
department than if she filed the complaint alone, Prof. Martin enlisted the assistance of Officer Sirleaf
facilitate the meeting with the D.C. Metropolitan Police Department (MPD).
The D.C. Police Department characterized the harassment as "stalking." Criminal "stalking" is defined by
the D.C. Criminal Code as severe forms of harassment that are threatening or annoying and processed
Prof. Martin's complaint as a criminal stalking complaint. Howard Campus Security Officer Sirleaf also
filed a campus police report. MPD and Officer Sirleaf advised the Law School ban Harrison from
campus and post notices and mug shots to inform the law school community that he was banned.
Even as of five days after Prof. Martin reported Harrison's harassment to the Dean's office, the Law
School had failed to follow the advice of MPD and its own campus security officer, Officer Sirleaf.
Harrison was still walking freely in and out of the Law School buildings and was seen using the Law
School Library. No signs or mug shots had been posted, even though Harrison had a criminal record
and a history of violence, according to both MPD and the homeless shelter that had just evicted him for
violent behavior. Prof. Martin therefore reduced her requests for protection to writing. See November
25, 1997 memo asking for protection from Harrison. See also Prof. Martin's December 2, 1997 memo
detailing Harrison's attempt to enter her office and Officer Dowdy's "chase" of Harrison off the Law
School Campus (at Connecticut and Van Ness Avenues) and into the woods; and Prof. Martin's
December 18, 1997 memo to Associate Dean Newsom, again requesting that a notice be posted banning
Harrison from campus, in accordance with Howard's own campus security policies and procedures. In
support of Ms. Martin's case, Howard Campus Security Officers Sirleaf and Dowdy testified at trial, as
did MPD Detective Brian Henry, who was assigned the stalking investigation. Both in their depositions
and at trial, Officers Sirleaf and Dowdy, as well as former Howard University Director of Security
Dawson, testified that Howard failed to follow its own security policies in response to Prof. Martin's
case. You can actually hear Officer Sirleaf comment on the case by listening to the Burnie McCain radio
interview of Prof. Martin uploaded above. Officer Sirleaf actually called into the radio show to
corroborate Ms. Martin's complaints and confirm that Howard failed to protect her and retaliated against
her. Officer Sirleaf was still employed at Howard at the time that he made these comments on the radio.
Dean Bullock had represented to Prof. Martin, in a December 1, 1997 memo, that she was discussing
security matters with Mr. Dawson, in response to her November 25, 1997 memo regarding Harrison .
Howard had claimed, for years, that Dean Bullock informed Mr. Dawson of Prof. Martin's written
complaints regarding Harrison's stalking and that Mr. Dawson was involved in developing a plan for
protecting Prof. Martin from Harrison. When Mr. Dawson was finally deposed, he testified that Dean
Bullock never informed him of Prof. Martin's complaint or anything about Harrison. He also detailed the
precautions that he would have taken, pursuant to Howard's own security policies and procedures, had
Dean Bullock consulted him. Confronted with Mr. Dawson's testimony, Dean Bullock finally admitted
that she never discussed the stalking with Mr. Dawson, any other person in campus security or the D.C.
Police department.
Howard's lawyers tried to discredit its own security officers on the stand, but the officers stood fast to
their testimony -- even though one was still an employee of Howard, with 30 years seniority and the
former officer's wife works in the office of the Law School Dean. The former officer expressed
concerns about possible retaliation against his wife for his testimony, but felt obligated to tell the truth on
the stand. Ms. Martin will always be extremely grateful to these officers -- Officers Sirleaf and Dowdy
-- for their integrity and courage.
Similarly, Ms. Martin is grateful to Howard's most senior Law School faculty members, Prof. Spencer
Boyer and Henry Jones, who were part of the legacy of civil rights now claimed by Howard. Profs.
Boyer and Jones, as well as Prof. Sherman Rogers, offered deposition support for Prof. Martin in the
case, although their testimony was not admitted at trial. Prof. Boyer has taught more African-American
lawyers than any other professor in the country. He testified that he and the other senior members of the
faculty had read the primary filings in the case and believe that Ms. Martin should prevail and be
reinstated at Howard Law School to be their colleague again. Ms. Martin has requested reinstatement as
part of the remedy for her retaliatory non-renewal, as discussed below.
Retaliation for Reporting Stalking at the Law School
Instead of following Howard's own security procedures to bar Harrison from the law school, Dean
Bullock ensured that Prof. Martin's teaching contract was not renewed. Prof. Martin had excellent
teaching evaluations. Many of her students wrote letters and signed petitions to Dean Bullock in protest
protests of her non-renewal. Dean Bullock improperly interfered with the hiring process by expressing
her disfavor with Prof. Martin to the Vice Chair of the Appointment Committee, Prof. Andrew Taslitz
and Associate Dean Michael Newsom; thereafter, Prof. Taslitz represented the status of Prof. Martin's
publications, as well as those of a junior visiting professor, to his colleagues in a manner that made them
believe that the junior professor had a superior record of scholarship. The remaining four members of
the Appointments Committee therefore selected the junior professor to teach the equal employment law
that Prof. Martin had been teaching for two years at Howard, and four years total. Dean Bullock then
assigned a new professor to take over her Torts I and II classes. In fact, a simple glance at the
candidate's resumes and/or applications revealed that it was Prof. Martin who had the superior record of
scholarship.
For years, Howard claimed that the junior visiting professor selected had her article published, as of
December 18, 1997, when the Appointments Committee selected her to take over the Equal Employment
Opportunity (EEO) Law class that Prof. Martin had been teaching at Howard for the previous two
years. In fact, this selectee, junior visiting professor's article, was not actually published until a year
later, in the Winter of 1998. For years, while withholding discovery until it was held in Contempt of
Court in 2002, Howard also claimed that Prof. Martin's article was not even completed, as of December
18, 1997; however, once deposed, all of the members of the Appointments Committee testified that they
actually knew that Prof. Martin's article was not only completed by that date, but also accepted for
publication as of that date. Prof. Martin's article was published, by the New York University Journal of
Law and Policy, at the same time as was the junior visiting professor, in the Winter of 1997. Prof.
Martin also had published prior to joining Howard's faculty -- which Howard acknowledged on its own
website and in the memo recommending Prof. Martin's hire two years earlier. The selectee had
published no articles since graduation from law school, as of December 18, 1997. Prof. Martin was a
recognized national expert in EEO law, had helped develop national policy in the area at the EEOC and
had taught it for four years. The junior selectee had limited experience in EEO law and had never
previously taught it.
In addition to the advertised EEO position filled by the junior visiting professor, Dean Bullock left at least
three additional faculty positions vacant, rather than to allow the Appointments Committee to consider
Prof. Martin for one of them. At the same time, students were clamoring for courses and protesting the
fact that there were not enough courses for them to meet their graduation requirements, nor were there
enough professors to teach them. Appointments Committee member, Prof. Nolan, testified that she
directly asked Dean Bullock whether there were any additional vacancies so that the Committee could
recommend that Prof. Martin fill one of them. Dean Bullock actually lied to Prof. Nolan, telling her that
there were no more vacancies. In her Answer to the Complaint, Dean Bullock admitted that, in fact,
there were at least three tenure-track vacancies at the time. Ms. Martin presented the jury with a Chart
of Howard's ever-changing and conflicting purported defenses to its refusal to renew her contract.
Shocking trial testimony came from Prof. Isaiah Leggett, the then Chair of the Appointments Committee,
now the County Executive for Montgomery County, Maryland and reputed to be a contender for
Governor of the State of Maryland. Adding yet another changing defense to Howard's list, Ike Leggett
attempted to defend against charges of sex discrimination and retaliation with an admission of age
discrimination. He actually testified that he voted to reject Prof. Martin, in favor of the less experienced
applicant, to give the "young rookie" a chance. He compared law professors to football players. Prof.
Leggett was the Director of the County Human Rights Division for ten years and has built his political
career on portraying himself as a civil rights advocate; yet, not only did he participate in covering up
Bullock's retaliatory actions against Prof. Martin for reporting sexual harassment, but he personally
admitted to committing illegal age discrimination. Ms. Martin has therefore asked to amend her
Complaint to add in a claim under the Age Discrimination in Employment Act (ADEA).
It is also worth noting that, while Prof. Martin was removed from the faculty, the same Appointments
Committee, during the same year, granted tenure to Prof. Reginald L. Robinson, despite complaints that
Prof. Robinson's "sexual jokes," which he repeatedly e-mailed to faculty and staff, were offensive and
might cause Howard to be faced with a claim of hostile work environment on the basis of gender. This
and other events at that time reflected Howard Law extreme insensitivity to issues of sex discrimination
and sexual harassment, as well as a disregard for accountability, under the law, for sexual harassment.
THE STATUTORY AND COMMON LAW CLAIMS IN MS. MARTIN'S LAWSUIT
Title VII: Sexual Harssment/Hostile Work Environment
Ms. Martin sued Howard under Title VII of the Civil Rights Act of 1964 and the D.C. Human Rights Act,
which prohibit discrimination on the basis of sex/gender. The Supreme Court has held that Title VII
prohibits sexual harassment when the harassment is based on sex. This means that harassment that is
directed at women, but not men, or vice-versa, is illegal under Title VII. (Title VII also prohibits
discrimination on the basis of race, color, national origin, and religion.) Sexual harassment occurs then
harassment is based on sex/gender (or is sexual in nature) and it is severe and pervasive, rising to the
level of creating a hostile work environment for the employee.
The precedent set in this case adds to the legal definition of sexual harassment. Although the Appellate
Panel stated that its ruling against Ms. Martin does not mean that stalking can never constitute sexual
harassment, it is difficult to imagine a case that would meet the Panel's standards, based on its ruling in
Martin. In this case, Prof. Martin did not know her stalker. He was a complete stranger and a serial
stalker, roaming through the law school. There is no way that the employer could "blame the victim" for
bringing the stalker to the law school.
How much more difficult will it be for victims of domestic violence and women whose stalkers are ex-
husbands or ex-boyfriends to seek protection from the courts when they are fired for being stalking
victims? In fact, at oral argument, Howard's attorney, Brian L. Schwalb, specifically argued that ruling
in Ms. Martin's favor "would sweep into Title 7 analysis and discrimination analysis anytime ... a woman
is the subject of a stalking or a domestic violence issue .... " See Transcript of Oral Argument, page 16,
lines 1-12.
Of course, neither Ms. Martin nor Amicus Curiae, the National Association of Women Lawyers, ever
argued that the employer should be held responsible for domestic violence issues or stalking outside of he
workplace. They only argued that Title VII requires the employer to take reasonable steps to end
stalking against women in the workplace and prohibits the employer from firing or otherwise retaliating
against the woman who is being stalked. They argued that a woman should not have to choose between
her job and her safety. They also pointed out that, if a woman can be fired for informing her employer
that she is being stalked, then women will be afraid to report it -- and the employer will not be prepared
to prevent violence in the workplace or harm to that employees or others who may become "collateral
damage" in a workplace attack on the intended victim.
Title VII: Retaliation.
Title VII includes an anti-retaliation provision that prohibits an employer from taking any adverse action
against an employee for asserting their rights under Title VII. Even in "employment at will" jurisdictions,
Title VII and other anti-discrimination employment laws (such as the Age Discrimination in Employment
Act and the Americans with Disabilities Act) prohibits an employer from firing a person who has
complained about discrimination, including sexual harassment. In order to be protected against
retaliation, the employee's complaint had to be about conduct that constituted sexual harassment or at
least that the employee, in good faith, believed was sexual harassment or other discriminatory behavior
prohibited by Title VII. The Court of Appeals held:
"The District Court limited Ms. Martin's retaliation claims to two alleged harms-the
decision of Howard Law not to hire her for a tenure-track position in equal employment
opportunity law and her expulsion from her office. Any challenge to these alleged harms
is now moot. Because the jury reasonably found that Ms. Martin had not engaged in
protected activity, the necessary predicate for her claims of retaliation is missing."
March 31, 2008 U.S. Court of Appeals Decision, page 4. In other words, since the jury concluded that,
although Leonard Harrison stalked Prof. Martin in her workplace, the evidence did not prove that
Harrison targeted her because she was a woman, there was no statutory protection against any type of
retaliation that Howard might have taken against her for being stalked in her workplace. Since the Court
determined that Harrison's stalking of Prof. Martin did not constitute sexual harassment within the
meaning of Title VII, Howard was free to fire her, decline to renew her contract, fail to promote her,
reject her for a tenure-track faculty position or even a renewed visiting contract for a year. The
precedent set for all stalking victims, then, is not even about the specific type of retaliation that Howard
took against Prof. Martin, but rather, the question of whether the employer is permitted, by law, to
retaliate against stalking victims. If so, that retaliation can take any form at all, including immediate
termination.
State Common Law Claims. In addition to her federal and D.C. Statutory anti-discrimination law
claims under Title VII and the D.C. Human Rights Act, Ms. Martin raised three common law state
claims, intentional infliction of emotional distress, wrongful discharge and breach of contract. These
claims are completely separate and distinct from her Title VII claims. The outcome of one does not
affect the outcome of the other, as a matter of law.
Wrongful Termination.
Ms. Martin and NAWL argued that, if Ms. Martin's "non-renewal" is not prohibited by the retaliation
provisions of Title VII or the D.C. Human Rights Act, then it should be prohibited under the common
law doctrine of "wrongful termination" as violating public policy. Some jurisdictions, including the
District of Columbia, recognize "wrongful termination" as an exception to the "at will employment"
doctrine. Ms. Martin and NAWL argued that it violates public policy to fire a woman because she was
stalked in her workplace by a delusional, serial stalker who only knew of her existence because of where
she worked. The Appellate Panel ignored this argument.
Intentional Infliction of Emotional Distress.
The District Court dismissed Ms. Martin's intentional infliction of emotional distress claim in 1999.
Martin v. Howard University and Alice Gresham Bullock, 1999 U.S. Dist. LEXIS 19516, 81 FEP Cases
964 (BNA), 15 IER Cases 1587 (D.D.C. 1999). The Court held that no reasonable jury could find Dean
Bullock's conduct -- which included subjecting her to a dangerous serial stalker on campus, without
protection, and then taking away her career and livelihood by ensuring that her contract would not be
renewed by the Appointments Committee -- "outrageous" enough to justify a claim of Intentional
Infliction of Emotional Distress . The jury therefore never heard this claim. The Panel affirmed this
holding, with virtually no discussion of her arguments. Ms. Martin will raise this claim again before the
Supreme Court.
Breach of contract.
Although Ms. Martin is raising the evidentiary errors at the Supreme Court level, she does not need to
prevail on her breach of contract claim to prevail on her Title VII claims. The breach of contract claim
is simply an alternative, separate legal theory under which she seeks redress. In fact, if she prevails on
her Title VII retaliation claim, she will be entitled to all remedies also available to her under a breach of
contract claim, which would arguably make her breach of contract claim moot.
Ms. Martin's breach of contract claim was based on her hiring negotiations with Appointments
Committee Vice Chair Andrew Taslitz, who recruited her from her tenure-track teaching position at
Cleveland-Marshall College of Law to come to Howard. This claim was the most difficult to prove
because the burden was on Ms. Martin to prove that Prof. Taslitz made certain promises and
representations to her, that if she accepted a visitorship, guaranteed in writing for at least two years,
Howard would "slide" her into a tenure-track position as soon as one became available.
Ms. Martin's claims were supported by circumstantial evidence that Howard had a pattern and practice
of treating its visiting professors like tenure-track professors, renewing them for as long as even ten
years, and converting them to tenure-track or even tenured positions when they became available.
The Howard University Faculty Grievance Committee, in its Report on Prof. Martin's Grievance, found
that "Professor Dawn V. Martin was not given due process" and that "her academic freedom, rights and
privileges may have been violated." The Committee also found Prof. Martin's breach of contract claim
"has merit:"
Professor Martin stated ... that Professor Andrew Taslitz 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 of 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 the
position announcement appears to want a person without experience.
Howard University Law School refused to recognize the jurisdiction of its own University's Grievance
Committee and refused to participate in the Grievance process. Rather then continue the fight within the
University, and to preserve her procedural rights to sue on her federal claims, Prof. Martin filed her
lawsuit in federal court. The trial judge refused to admit the University Grievance Committee's Report
into evidence, so the jury never saw it or knew of its conclusion. The jury found that Ms. Martin did not
carry her burden of convincing them on this issue; however, as she argued in her Brief, the trial judge
excluded evidence that further supported her allegations and admitted evidence that was irrelevant and
prejudicial, while excluding Ms. Martin's rebuttal evidence. Ms. Martin argued that these evidentiary
rulings, and other prejudicial conduct of the trial judge, unduly prejudiced her case on this issue. This
issue was not addressed by NAWL, since this claim is primarily fact specific and does not establish legal
precedent that is likely to impact upon women as a group.
THE TRIAL
When Martin v. Howard University finally went to trial, in April of 2006,Howard never disputed the
specific conduct of Harrison. Instead, Howard first argued that the harassment was minor, rather than
severe and pervasive, and did not create a hostile work environment for Prof. Martin; however, after
Howard's own administrators -- including Dean Bullock and Associate Dean Newsom, as well as
Howard's own campus security officers and D.C. MPD detective testified that Prof. Martin's fear of
Harrison was well founded, Howard next argued that it took reasonable measures to end the harassment.
When called upon to produce evidence of such reasonable steps however, Howard could not do so.
Instead, Dean Bullock admitted that she did nothing to ban Harrison from the campus and never even
discussed the matter with the Director of Howard Security, although she had written, in a December 1,
1997 memo to Prof. Martin, that she was enlisting the Director's assistance to address the stalking.
THE JURY VERDICT
The jury agreed with Prof. Martin, that Harrison's harassment of her was severe and pervasive, creating
a hostile work environment for her. Jury Verdict, Questions # 1(a). The Jury Verdict Form page 1,
reads:
1. Did the Plaintiff prove by a preponderance of the evidence that:
a) Mr. Harrison subjected her to conduct that was sufficiently severe and pervasive to alter the terms and
conditions of her employment?
__X___ YES ______ NO
b) Mr. Harrison’s conduct was unwelcome?
__X___ YES ______ NO
c) Mr. Harrison’s conduct was sexual in nature or because of Plaintiff’s gender?
______ YES __X__ NO
d) Howard University knew or should have known of the alleged conduct?
__X___ YES ______ NO
e) Howard University failed to take proper remedial action that was reasonably calculated to end the
harassment?
__X___ YES ______ NO
Jury Verdict, Question # 1(a)-(e). See also discussion in Ms. Martin's Appellate Brief, pages 8-9; 11-23;
Amicus Brief of the National Association of Women Lawyers (NAWL), pages 9-17.
The jury also concluded that Howard knew or should have known of Harrison's harassment, bu failed to
take proper remedial action to end it. Jury Verdict, Questions # 1(d)-(e); however, oddly, and
contradicting Judge Hogan's finding of law in his 1999 decision, the jury determined that the harassment
was not "sexual in nature" or based on her sex/gender. Jury Verdict, Questions # 1(c). The answer to 1
(c) determined the entire Title VII case and resulted in a verdict for the defendant. There is no federal of
D.C. Statute prohibiting discrimination against stalking victims. (New York is one state that does have
an anti-retaliation stalking victims' statute.) Title VII only applies if the harassment is based on race, sex,
color, national origin or religion. Although some jurisdictions have upheld "wrongful discharge" claims
where plaintiffs have been retaliated against for being victims of stalking, domestic violence or other
violent acts, neither the district court or the Appellate Court in Martin recognized the argument, although
both Ms. Martin and NAWL made the argument in their Briefs.
The jury’s answer to the question of whether Harrison harassed Plaintiff based on her sex disposed of
this case, both with respect to Plaintiff’s sexual harassment/hostile work environment case and her
retaliation case. Because the jury found no “protected activity,” Title VII could not be invoked to
prevent Howard from retaliating against Prof. Martin -- even if Howard decided not to renew her
specifically and expressly because she asked for protection from the serial campus stalked in her
workplace. This ruling of law allows an employer to legally retaliate against a stalking victim without
violating Title VII, even where, as here, the stalker harassed Prof. Martin and other women who fit the
professional profile of his ideal "wife," to try to convince them to become his "wife."The jury was clearly
confused about the definition of sexual harassment and harassment on the basis of sex, as indicated by
its request for additional instruction on the legal definition of sexual harassment. See Jury Request for
additional instruction. The judge refused to provide the requested additional instruction.
In 1999, the district court judge said that it was "clear" that Harrison harassed Prof. Martin based on her
sex –but seven years later, after all of the evidence was presented at trial, the same judge suddenly
submitted the question to the jury. Howard argued that stalking -- even here, where the stalker harassed
Prof. Martin and other women to become his "wife" -- was separate and distinct from sexual
harassment, and not covered by Title VII of the Civil Rights Act of 1964, which prohibits discrimination
and harassment on the basis of sex/gender. Based on confusing jury instructions on the law of sexual
harassment, and what they understood the law to be, the jurors concluded that Harrison’ stalking was
not sexual in nature or based on Prof. Martin's gender. That meant that there is no statute to protect her
from being stalked in her workplace or from being fired for reporting it.
APPELLATE BRIEFS
The Appellate Briefs may be accessed through the links below:
1) Ms. Martin's April 29, 2008 Petition for Rehearing, En Banc (includes March 31, 2008 Appellate
Decision in the Appendix;
2) Brief of Dawn V. Martin, Esquire, Appellant's Brief;
3) Amicus Curiae Brief (friend of the Court), by The National Association of Women Lawyers;
4) Howard University Brief; Appellee # 1 Response Brief;
5) Alice Gresham Bullock Brief, Brief of Alice Gresham Bullock, Esquire, Appellee #2 Response Brief; and
6) Martin Reply Brief responding to Appellees' arguments.
The National Association of Women Lawyers ("NAWL") filed an Amicus Curiae Brief (friend of the
court) in support of Ms. Martin. NAWL's Brief outlines the issues it believes will affect the rights and
safety of women at work. NAWL is the leading national voluntary organization devoted to the interests
of women lawyers and women's rights. NAWL has historically served as an educational forum and an
active voice for the concerns of women in the legal profession.
The Joint Appendix, submitted to the Appellate Court with the Briefs, consisted of the entire District
Court Record (over 14,000 pages long, spanning an 8-year period of court filings) -- including the full
trial transcript. See Table of Contents for Joint Appendix. The Briefs cite the specific page number of
the Joint Appendix containing the evidence (exhibit or witness testimony) that the party is relying upon to
support each factual statement made in the Briefs.
THE MARCH 31, 2008 DECISION APPEALED TO THE SUPREME COURT
On March 17, 2008, a three-judge Panel of :the United States Court of Appeals for the D.C. Circuit
(Judges Edwards, Henderson and Williams), heard oral argument in the appeal in the case. Ms. Martin
told the Panel:
“The precedent set by this Court will determine how employers and educational institutions will
respond to stalking and other types of workplace and campus violence – particularly when it is
directed against women. If a woman can be stalked in her workplace, and fired for asking her
employer to take reasonable steps to keep him out of the workplace, then women will be forced
to choose between their safety and their livelihood – a Hobson’s choice.”
Less than two weeks later, the Panel issued a March 31, 2008 unpublished decision. (No individual
judge claimed "credit" for writing the decision.) The Court held:
"The District Court limited Ms. Martin's retaliation claims to two alleged harms-the
decision of Howard Law not to hire her for a tenure-track position in equal employment
opportunity law and her expulsion from her office. Any challenge to these alleged harms
is now moot. Because the jury reasonably found that Ms. Martin had not engaged in
protected activity, the necessary predicate for her claims of retaliation is missing."
March 31, 2008 unpublished decision at page 4. In other words, since the jury concluded that, although
Leonard Harrison stalked Prof. Martin in her workplace, the evidence did not prove that Harrison
targeted her because she was a woman, there was no statutory protection against any type of retaliation
that Howard might have taken against her for being stalked in her workplace.
This decision, disturbingly, allows an employer to fire a woman for being stalked -- even here, where the
harasser is a delusional, serial stalker of African-American women professors, allowed to roam freely
through her workplace -- a law school campus of a national University touted for its civil rights legacy.
The Panel squarely placed women in the "Hobson's choice" position warned by Ms. Martin, forcing them
to choose between their jobs and their safety, if they are stalked at work.
The Panel's brief March 31, 2008 disposition of the case failed to even address several of the most
important legal issues raised in both Ms. Martin's Brief and the Amicus Curiae Brief of the National
Association of Women Lawyers. This means that the lower court decisions that did address these issues
remain intact, as the legal precedent for the District of Columbia Circuit. See relevant district court
decisions. The errors in these decisions are detailed in the Appellate Briefs.
On April 29, 2008, Ms. Martin filed a Petition for Rehearing En Banc, asking the entire court to review
the decision. On May 20, 2008, the Clerk of the Court denied the petition, since no judge had called for
a vote on the matter. Ms. Martin filed a Petition for Supreme Court review. The National Organization
for Women (NOW), the National Association of Women Lawyers (NAWL) and additional women's and
civil rights advocacy groups filed an Amicus Curiae (friend of the Court) Brief urging the Supreme Court
to hear the case. Unfortunately, the Supreme Court did not hear the case. The Supreme Court receives
7,000-9,000 Petitions, or requests to hear cases per year. It can only hear less than 100 cases. Any
Petition for the Supreme Court is, therefore, a "longshot;" nevertheless, the case did get substantial
coverage on the internet and among women's groups. Hopefully, it will serve to raise awareness on the
issue of stalking and workplace violence and perhaps result in federal legislation that mirrors New York
City's Human Rights Law, which protects employees from discrimination and retaliation for being
victims of stalking or domestic violence.
The arguments made by Ms. Martin and the Amicus groups are summarized below, but set forth in more
detail in the Briefs of Ms. Martin and NOW/NAWL.
JUDICIAL ERRORS IN THE APPELLATE PANEL'S MARCH 31, 2008 DECISION
(See Petition for Rehearing En Banc for a full discussion)
Errors in the Definition of Sexual Harassment or Harassment Based on Sex
The Appellate Decision Left Intact the District Court's Holding that the
Absence of "Groping" or "Touching" can Defeat a Sexual Harassment Claim
The district court held that “groping” and “touching” are “typical” indicia of sexual harassment cases and
that since Harrison did not touch Prof. Martin, the jury had reason to find that she was not sexually
harassed.” The Court of Appeals did not address this issue. Since it has not been overturned, this
precedent set by this decision arguably requires a woman to be assaulted in order to establish that she
was sexually harassed in her workplace. This holding flies in the face of Supreme Court precedent and
sets sexual harassment law back more than thirty years in the District of Columbia.
The Appellate Court Ignored the Fact that the Stalker "Profiled" Prof. Martin,
on the Basis of her Gender
Martin is the first known case posing the concept of “gender profiling” in employment, under Title VII
of the Civil Rights Act of 1964, which prohibits discrimination on the basis of sex. Harrison pursued
only women to be his "wife" and stalked or harassed them on that basis. He specifically selected women
of color who were lawyers and/or professors specializing in civil rights law, particularly involving issues
of race. These are the characteristics of the fictional female character, Geneva Crenshaw, in Prof.
Derrick Bell's book, And we are not Saved. Harrison had decided that the "real" Geneva Crenshaw
should be his wife and set out on a quest to find her -- a quest that spanned at least 12 years and was
continuing after he stalked Prof. Martin.
Martin also raised the issue of "gender profiling" in the employment discrimination context. Just as
"racial profiling" targets victims based on race, victims are "profiled" on the basis of their sex when they
are targeted for harassment because they fit a certain "profile" that is dependant upon gender. Just as
"driving while Black" creates a disproportionate risk of arrest for African-Americans, "working while
female" creates a disproportionate risk of being stalked or otherwise harassed in the workplace. This may
occur when a harasser targets a woman because she resembles a character in a book or a celebrity. The
harasser may also target a woman to fulfill a gender specific role, such as "wife," "mother" or
"daughter."
The precedent set in Martin, with respect to gender, will also apply to racial profiling and profiling based
on other protected categories such as race, national origin, age, disability or religion. The implementation
of EEOC Regulation 29 CFR 1604.11(e), affects not just women, with respect to sexual harassment, but
also other racial, ethnic, religious, age and disability groups unprotected where they are targeted for
harassment, in the workplace, by non-employees (e.g., Maupin v. Howard County Board of Education,
Howard County, Maryland Circuit Court (July 2, 2007) (an African-American teacher received
intimidating calls at work from a purported member of Ku Klux Klan and her request for security was
denied).
Ms. Martin and NAWL cited Supreme Court and additional case law on holding that the test of whether
the harassment is based on sex is whether the harasser would have similarly harassed the plaintiff had
she been a man. These "sex plus" other factors cases hold that if sex/gender is one of the factors used
to target the victim, then the conduct constitutes discrimination on the basis of sex/gender. The facts of
this case clearly demonstrated that Harrison would not have pursued Prof. Martin to be his wife had she
been a man -- nor would he have hoped that she was the "real" Geneva Crenshaw if she had been a man
and that sex/gender was the foremost criterion used by Harrison to select his victims. The Appellate
Panel ignored this argument.
The Appellate Panel Ignored Former Dean Bullock's Perjury, Proven by her own
July 1, 1999 Memo Directly Contradicting her Trial Testimony
In Dean Bullock's July 1, 1998 memo to Howard's General Counsel, in response to Prof. Martin's EEOC
charge, she expressly acknowledged that, when she read Prof. Martin's November 25, 1997 memo to
Dean Bullock detailing Harrison's stalking of her on campus, she and Associate Dean Newsom perceived
Harrison as a serious threat to Prof. Martin and "other women" on campus whom Harrison might "stalk"
or "otherwise harass;" yet, at trial, Prof. Bullock testified that she did not perceive Harrison's pursuit of
Prof. Martin to be based on gender.
Federal Rule of Civil Procedure 60(b) prohibits a party from prevailing in case based on fraud. As set
forth in Ms. Martin's Brief, case law holds that perjury constitutes fraud, within the meaning of Rule 60
(b) and compels vacating the jury's verdict, which was based on former Dean Bullock's perjury on the
deciding issue in the case. Neither Howard nor Prof. Bullock's personal attorney have denied that former
Dean Bullock committed perjury at trial. Instead, Howard's Brief and Bullock's Brief both argue that
perjury does not require vacating the jury’s verdict. Howard's position is neither morally nor legally
defensible; yet, the Appellate Panel did not address it.
The Appellate Panel Erroneously Held that Harrison Harassed Prof. Martin because
he "Misidentified" her as his Wife and that Harassment Based on "Misidentification:
Did not Constitute Harassment Based on Sex/Gender
The Appellate Panel adopted Howard's misrepresentation that the stalker, Harrison, "misidentified" Prof.
Martin as his "estranged wife" and that this somehow negated his targeting of her as a woman. This
conclusion was wrong both on the law and the facts. First, even if Harrison had mistaken Prof. Martin
for a real "wife," he could not have mistaken her for his wife had she been a male. This would still mean
that he harassed her on the basis of her sex -- even if sex were not the only criterion.
Second, this conclusion is factually baseless. The record is clear that there was never any real "wife."
Harrison's letters reveal that there is only his delusional vision of a woman whom he wanted to be his
wife -- based on a fictional female character in a book. Harrison could not have "misidentified" Prof.
Martin for a woman who does not even exist!
The Appellate Panel Ignored the Ms. Martin's and NAWL's Argument that
Stalking Constitutes Harassment on the Basis of Sex because 80% of all
Stalking Victims are Women
Both Ms. Martin and NAWL argued that stalking constitutes harassment on the basis of sex because
80% of all stalking victims are women, citing Justice Department statistics. They argued that the
disparate impact theory of discrimination should be applied, rather than requiring the plaintiff to prove
that the stalking was based expressly on sex. The Appellate Panel ignored this argument.
The Appellate Panel Ignored Ms. Martin's and NAWL's Argument that the Stalker's
Pursuit of Prof. Martin to become his "Wife" was Inherently Sexual in Nature
Both Ms. Martin and NAWL argued that marriage, as a matter of law, is an inherently sexual relationship,
citing case law that permits divorce where a spouse withholds sex from the other, without recognized
justification. The Appellate Panel ignored this argument as well.
The Appellate Panel Erroneously Held that, in 1999, Judge Hogan did not Hold
that Harrison's Harassment of Prof. Martin was Based on Sex, as a Matter of Law,
Based on the Undisputed Facts
The Court of Appeals held that Ms. Martin misinterpreted Judge Hogan’s 1999 decision; however, on
October 20, 2003, Magistrate Judge Facciola, to whom Judge Hogan referred the case, specifically
identified, in detail, the issues were decided in 1999 and would not be “triable issues of fact” for the jury
and what issues would proceed to a jury at trial. The Court of Appeals discounted MJ Facciola’s
interpretation of Judge Hogan’s decision, stating that he could not overrule Judge Hogan; however, as
Ms. Martin stressed in her Brief, Reply Brief and oral argument, Judge Hogan adopted Judge Facciola’s
decision as his own, on September 16, 2005. This was not, therefore, a question of whether Ms. Martin
and/or Magistrate Facciola corrected interpreted Judge Hogan's decision; by making Magistrate
Facciola's decision his own, he confirmed that Magistrate Facciola had correctly interpreted his 1999
decision as determining, based on the undisputed facts, Harrison's conduct constituted harassment on the
basis of sex, as a matter of law and that it would not be a triable issue of fact for the jury.
Errors of Fact that Affected Rulings of Law
The Appellate Panel's unpublished March 31, 2008 Decision adopts -- and actually relies upon.as fact,
Howard's blatant, material misrepresentations of the record -- even though Ms. Martin filed two motions
for sanctions against Howard and its outside counsel for these misrepresentations in its Brief and oral
argument. See March 11, 2008 Motion for Sanctions against Howard University for its false
representations to the Court of Appeals in its Brief. On April 1, 2008, Ms. Martin filed a Motion for
Sanctions against Brian L. Schwalb, Esquire (see Exhibits) one of Howard's attorneys, and his law firm
for his false statements and misrepresentations of the record during oral argument. Howard made
numerous material false factual representations that were completely unsupported by the evidence and
contradicted by Howard's own admissions in discovery and stipulations and/or by the testimony of its
own binding witnesses.
The Court of Appeals also relied on Howard's completely unsupported statement that Harrison "stalked"
males as well as females; but Harrison was not an "equal opportunity stalker. H stalked only women.
Harrison has targeted African-American female professors across the country, since the mid-1980s, in
search of the embodiment of a fictional character, Geneva Crenshaw, in a book, And we are not Saved,
written by the renowned law professor, Prof. Derrick Bell, who is currently teaching at NYU Law
School. See Harrison's letters: first letter; second letter; January 1998 letter to another female attorney.
In 1990, Harrison threatened the life of Prof. Bell, at Harvard University, accusing Prof. Bell of
concealing the identify of the "real" Prof. Crenshaw from him. See Affidavit of Prof. Derrick Bell. This
one incident, however, does not begin to meet the definition of "stalking," since "stalking" is legally
defined by numerous acts of harassment.
Since the trial judge would not allow Prof. Bell to testify, the only evidence of Harrison's contact with
Prof. Bell came from Ms. Martin. Ms. Martin did not use the word "stalk" in describing what Prof. Bell
told her, nor did the behavior described constitute stalking. The judge allowed in only enough testimony
to inform the jury that Harrison had approached a man, then cut off Ms. Martin's testimony so that the
jury could not hear that Harrison only approached him to obtain the name of a woman or that Prof. Bell
had told her of other women that Harrison pursued to be his "wife" -- or the model for the "Geneva
Crenshaw" character.
NAWL's Amicus Brief argues that Howard’s argument is like saying that John Hinckley did not sexually
harass Jodie Foster when he stalked her because he also attempted to kill President Reagan. NAWL
argues that the fact that a sexually harassing stalker may also have committed a violent act against a man
in his lifetime does not negate the fact that he sexually harassed a woman in another setting.
The Appellate Panel Left Intact Erroneous Precedent in Title VII Retaliation Cases
Martin also presented issues regarding actionable retaliation under Title VII, but the Court of Appeals
deemed these issues moot. Since the Court determined that Howard was free to commit any retaliatory
act against Prof. Martin for being stalked, with no Title VII penalty, the lower court’s definition of acts
that constitute actionable retaliation under Title VII was irrelevant to this case; however, the Court of
Appeals’ failure to reverse the lower court on this issue leaves the lower court’s precedent intact: an
employer may leave positions unfilled, cancel vacancies and/or convert advertised positions to positions
for which an applicant is not the best qualified, even where it is done to prevent the most qualified
applicant from being hired, in retaliation for reporting sexual harassment – or any other EEO violation,
whether based on race, national origin, religion, ethnicity, age or disability.
The Appellate Panel Failed to Address Trial Court's Decision Assessing Defendants'
Litigation Costs against Plaintiffs in Employment Discrimination Cases, Filed in Good Faith
This case presents the Court with yet another precedent-setting issue. The trial court, via, Chief Judge
Hogan, ordered Ms. Martin to pay Howard University's litigation costs, without notice or opportunity to
be heard on the factors that are to be considered when assessing costs against a Title VII plaintiff. Ms.
Martin filed an Opposition to Defendant's Bill of Costs based on the law of other circuits and related
Supreme Court law.
Ms. Martin also asked the Court to define the circumstances under which Title VII plaintiffs may be
ordered to pay the litigation costs of the defendant. The National Organization of Women (NOW)
recently ran a campaign protesting the 11th Circuit imposition of costs against the plaintiff in Lilly
Ledbetter v. Goodyear, after the Supreme Court ruled against her in her sex discrimination claim. NOW
and NAWL have argued that such assessments unfairly punish women who file sex discrimination
lawsuits, in good faith, in the public interest. The Court declined to address this issue.
The issue of assessing costs was stayed during the appellate process. When the appellate process ended,
Howard University moved the Court to lift the stay and force Ms. Martin to pay its litigation costs (nearly
$10,000). "Costs" include deposition transcript costs, photocopying and other "out of pocket" costs, as
opposed to attorneys' fees, which cannot be assessed against a plaintiff unless it is a completely frivolous
suit, within the meaning of "Rule 11," meriting punishment of the plaintiff for bringing the action. The
issue of costs is currently pending before Judge Hogan, at the Trial Court level. Ms. Martin has cited
numerous cases, including controlling case law, holding that the special status of civil rights plaintiffs, as
"private attorneys general" opposing discrimination, requires that the court examine certain factors to
each case to determine whether it is just and fair to impose the defendant's costs on the plaintiff. These
factors include: 1) whether the plaintiff brought the case in good faith; 2) whether the case was a close
one or raised important legal issues; 3) the relative financial resources of the parties; 4) any misconduct
by the defendant; and 5) any misconduct by the plaintiff. See Plaintiff's Motion to Retax Costs/Vacate
Clerk's Taxation of Costs, Defendant's Opposition to Plaintiff's Motion to Retax Costs/Vacate Clerk's
Taxation of Costs against Plaintiff and Plaintiff's Reply to Defendant's Opposition to Plaintiff's Motion to
Retax Costs/Vacate Clerk's Taxation of Costs against Plaintiff.
Ironically, Howard University is, once again, betraying its own civil rights legacy by arguing for legal
precedent that punishes civil rights plaintiffs for filing civil rights suits, by burdening them with
Defendants' litigation costs if they do not prevail in their lawsuits. Courts have held that the threat of not
only losing a case, but also, the possibility of paying the defendant's litigation costs, would have a
"chilling" effect on potential civil rights plaintiffs and that this reluctance to file civil rights claims will
thwart the enforcement of civil rights.
HOWARD'S DEFENSES HAVE CONSISTED OF FRAUDS UPON THE COURT FOR ELEVEN
YEARS
In addition to Dean Bullock's perjury regarding her understanding that Harrison's harassment was
directed at women, such as Prof. Martin -- and not men, as discussed above, Dean Bullock's July 1,
1998 memo to Howard's General Counsel, claimed that she took a number of precautionary measures,
including involving Howard's campus security force in developing a plan to protect Prof. Martin and
other women at risk on campus; however, when Ms. Martin was finally permitted to depose Dean
Bullock and Howard security officers in 2002, after Howard defied numerous discovery orders and was
held in contempt for withholding discovery, Bullock admitted that she never even discussed the stalking
with the Director of Campus Security or any other security or police officer, while Prof. Martin was
teaching at Howard. Her admissions contradicted her July 1, 1999 written representations to Howard's
General Counsel and her December 1, 1997 memo to Prof. Martin, in response to her November 25,
1997 memo asking for protection from the stalking.
As discussed above, for years, Howard claimed that the junior visiting professor selected had her article
published, as of December 18, 1997, when the Appointments Committee selected her to take over the
Equal Employment Law class that Prof. Martin had been teaching at Howard for the previous two years.
In fact, this junior professor's article was not actually published until a year later, in the Winter of 1998.
Howard also claimed that Prof. Martin's article was not even completed, as of December 18, 1997;
however, once deposed, all of the members of the Appointments Committee testified that they actually
knew that Prof. Martin's article was not only completed by that date, but also accepted for publication as
of that date. Prof. Martin's article , "911: How Will Police and Fire Departments Respond to Public
Safety Needs and the Americans with Disabilities Act?" was published at the same time as was the junior
visiting professor, in the Winter of 1997.
TRIAL COURT FILINGS DETAILING FACTS AND LEGAL ARGUMENTS
The trial of this case was first delayed due to Howard University's refusal to produce discovery. In
2002, the court finally held Howard in Contempt of Court for its violation of three court orders to
produce valid discovery. The documents and deposition testimony produced as part of the discovery
process revealed that Howard could not produce evidence to dispute Ms. Martin's allegations and, in
fact, confirmed her material allegations. Ms. Martin therefore filed a Motion for Summary Judgment,
accompanied by a Statement of Undisputed Material Facts, in October of 2002. See also Martin's Reply
to Howard University's Opposition to Plaintiff's Motion for Summary Judgment, Plaintiff's Opposition to
Defendant's Motion for Summary Judgment and Plaintiff's Statement of Disputed Material Facts.
Ms. Martin moved the Court to Strike Defendant's Motion for Summary Judgment because it relied on
testimony specifically excluded from the record; however, the Magistrate Judge ignored her motion and
his own order and considered Howard's Motion for Summary Judgment relying on precluded testimony.
See Martin's Motion to Strike Defendant's Motion for Summary Judgment and Reply to Howard's
Opposition to Plaintiff's Motion to Strike. Ms. Martin waited three years for the Court to decide the
cross-motions for summary judgment. It never decided her Motion to Strike Defendant's Motion for
Summary Judgment.
After trial, but before filing the appeal, Ms. Martin 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 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.
ORIGINAL PETITION FOR SUPREME COURT REVIEW
On August 14, 2008 Ms. Martin filed her original Supreme Court Petition for Certiorari (for printing
purposes, note that the first 52 pages constitutes the Petition and the Appendix is an additional 241 pages
long). Howard filed a Brief in Opposition. Ms. Martin filed a Reply Brief and an Amicus Curiae (friend
of the Court) Brief was filed by the National Organization for Women (NOW) and the National
Association of Women Lawyers (NAWL), joined by: 1) Peace at Work; 2) The Arizona Coalition against
Domestic Violence; 3) The Iowa Coalition against Domestic Violence; 4) Survivors in Action; 5) The
Weaker Vessel; 6) After the Trauma; and 7) The California Protective Parents’ Association. Ms. Martin
extends her sincere thanks to these organizations and the people who committed themselves to the
Amicus Brief. She especially thanks Roberta Wright, Esquire, for writing the Brief and then NOW
President, Kim Gandy, for taking the lead in sponsoring and reviewing it.
The Supreme Court receives 9,000 Petitions for Certiorari (requests to review U.S. Court of Appeals
Decisions) each year. It hears less than 100 of them. There are death penalty cases, election cases,
international law cases, other employment cases and other extremely important issues before them, so it
is no reflection on the merits of Ms. Martin's case that it was not selected for review. To the contrary,
the fact that women's rights advocates and anti-violence groups support of Ms. Martin and her legal
arguments. Numerous websites, bloggers and commentators wrote in support of her efforts to provide
legal protection for stalking victims at work.
Even if Martin v. Howard University remains another wrong decision by judges setting bad precedent,
but hopefully, it will bring enough attention to the issues of stalking and workplace violence to bring
about a change the law, as well as security practices in the workplace and on campuses. It won't give
back what it took away from Ms. Martin or her family, but hopefully, it will help other women.
If the Supreme Court again declines to hear the case, however, Ms. Martin will still have to litigate the
issue of Howard's costs -- nearly $10,000 -- that the District Court, Judge Thomas Hogan, ordered Ms.
Martin to pay to Howard, as a result of her losing the case.
Howard’s legal arguments are difficult to find within the “muck and mire” of its flagrantly false
representations of the record. It consists primarily of false representations attacking her character, as it
did in its D.C. Circuit Brief. See March 11, 2008 Motion for Sanctions against Howard University for its
false representations to the Court of Appeals in its Brief. Ms. Martin's Reply focuses on the legal issues
affecting all women and stalking victims, but does address Howard's attack on her family.As the D.C.
Court of Appeals cautioned, in another sex discrimination case brought by a Howard University professor:
…[a]n unscrupulous employer who has engaged in discriminatory practices may
sometimes falsely depict a person with a legitimate complaint as a meritless troublemaker;
the effects of the employer’s wrongful conduct may them be compounded by the
undeserved ad hominen condemnation of and calumny against a plaintiff who deserves better.
Carter-Obayuwana v. Howard University, 764 A.2d 779, 793 (D.C. 2001). Howard has a pattern of
long, “contentious” litigation with its employees. See, e.g., Summers v. Howard University, WL 751316
at *4, 5 (D.D.C. 2006) (finally settled).
"[A] lie is evidence of consciousness of guilt.”
Aka v. Washington Hospital Center, 156 F.3d 1284, 1293 (D.C. Cir. 1998).
The U.S. Court of Appeals' March 31, 2008 Decision repeats the facts as stated in the District Court's
October 4, 2006 District Court Decision, which fails to disclose any facts about the stalking of Prof.
Martin at Howard Law School; however, in 1999, the District Court did reveal these facts. See Martin
v. Howard University and Alice Gresham Bullock, 1999 U.S. Dist. LEXIS 19516, 1999 WL 1295339, 81
FEP Cases 964 (BNA), 15 IER Cases 1587 (D.D.C. 1999). The facts omitted by the Appellate Panel and
the 2006 trial court decision are the very facts that led the same trial judge, Judge Thomas F. Hogan, to
conclude, in 1999, that the stalker's pursuit of Prof. Martin and other women lawyers and professors
who fit the concept of his perfect "wife," made it "clear" that the stalker's harassment of Prof. Martin
was sexual in nature or based on her sex/gender. See Martin v. Howard University and Alice Gresham
Bullock, 1999 U.S. Dist. LEXIS 19516, 1999 WL 1295339,81 FEP Cases 964 (BNA), 15 IER Cases
1587 (D.D.C. 1999). The District Court reaffirmed this conclusion in 2003 and 2005; however, in 2006,
after all evidence was submitted at trial, the trial judge surprisingly submitted the question of whether the
harassment was based on sex to the jury and declined to provide the jury with additional instruction on
the legal analysis of sexual harassment when the jury requested it.
THE BASIS FOR THE PETITION FOR REHEARING BY THE U.S. SUPREME COURT
On November 17, 2008, the Supreme Court declined to review Prof. Martin’s case; however, on
December 12, 2008, she filed a Supreme Court Rule 44 Petition for Rehearing, in light of its pending
review of Crawford v. Metropolitan Government of Nashville and Davidson County, another case
similarly alleging sexual harassment and retaliation for reporting sexual harassment. Both Ms. Crawford
and Prof. Martin lost their jobs shortly after reporting the harassment to their employers. They were
both deprived of the opportunity to prove that they lost their jobs due to retaliation for reporting the
harassment. In both Crawford and Martin, the respective Circuit Courts held that the plaintiffs did not
engage in “protected activity” because of how they reported the sexual harassment to their employers.
In 1999, the federal district court set precedent in Martin by adopting the EEOC Regulation 29 CFR
1604.11(e), holding that an employer can be held liable for the sexual harassment of an employee, by a
non-employee, if the employer knew or should have known of the harassment and failed to take
reasonable steps to end it. Martin v. Howard University and Alice Gresham Bullock, 1999 U.S. Dist.
LEXIS 19516, 1999 WL 1295339, 81 FEP Cases 964 (BNA), 15 IER Cases 1587 (D.D.C. 1999). Judge
Hogan identified the jury questions as: 1) whether Harrison’s harassment was severe and pervasive
enough to constitute a hostile work environment; and 2) whether Howard took reasonable steps to end
it. The jury agreed with Prof. Martin that Harrison’s harassment did create a “hostile work environment”
for her and that Howard did not take reasonable steps to end it; yet the verdict was for Howard. With
insufficient legal instruction from the judge, the confused jurors found that the harassment was not
based on sex – and therefore, that Prof. Martin’s complaints were not “protected activity” under Title
VII of the Civil Rights Act.
Howard repeatedly told the jury that Prof. Martin’s claim must be defeated because, after the D.C.
Metropolitan Police Department characterized Harrison as a “stalker,” she entitled her memos to the Dean
“Security Problem on Campus” rather than “Sexual Harassment.” Prof. Martin asked the judge to
instruct the jury, using the words from his own 1999 decision, that it is not necessary to use the precise
words “sexual harassment” to invoke Title VII protection. Judge Hogan flatly refused to provide that
instruction, even though several courts have recognized that stalking is one of the most egregious forms
of sexual harassment. Judge Hogan also refused to provide the jury with the D.C. Stalking Statute,
which defines “stalking” as repeated harassment. Without the proper legal framework for analyzing
harassment based on sex, jurors were confused into accepting Howard University’s argument that the
stalker’s harassment was not sexual in nature or based on sex and that her complaints did not constitute
“protected activity.” The Supreme Court’s decision in Crawford should control the outcome of Martin.
Prof. Martin filed her December 12, 2008 Petition for Rehearing, coincidentally, shortly after celebrity
Paula Abdul directed public attention to the issue of workplace stalking in an interview with Barbara
Walters. Ms. Abdul alleged that her employer, American Idol, allowed a stalker on the show -- her
workplace --for "entertainment value." A videotaped audition shows a contestant singing a song he had
written about his desire to "stalk" Ms. Abdul, with fellow Idol judge Randy Jackson laughing and
encouraging it and security doing nothing, even as the contestant approaches Paula, grinding against the
table as he sings that he would like to "Peter Falk" her. It is only because fellow judge and producer
Simon Cowell insists that security remove the contestant that he is finally stopped.
Workplace scenarios described by Prof. Martin and Ms. Abdul highlight the fact that there is no federal
statute that expressly protects stalking victims against employer retaliation for complaining about stalking
-- or that obligates employers to take reasonable steps to keep known stalkers out of the workplace.
Prof. Martin filed her case under Title VII of the Civil Rights Act of 1964, which prohibits harassment
that is “sexual in nature” or based on gender. Prof. Martin argues that: 1) since 78% of stalking victims
are women, stalking constitutes harassment on the basis of gender; 2) when the stalker uses “gender
specific” language and criteria to select his victim, the stalking is harassment based on gender; and 3)
where a stalker pursues a woman to make her his “wife,” the harassment is stalking “sexual in nature.”
Prof. Martin wants the Court to apply Title VII to protect women from workplace stalking and from
employer retaliation for reporting stalking. Prof. Martin argues that women who are doing nothing more
than “working while female” should not have to choose between their jobs and their safety.
Ms. Martin intends to continue to stand up for women who are stalked in their workplaces by working
to pass legislation that expressly prohibits employer retaliation against stalking victims.
DELAYS AND PROCEDURAL OBSTACLES
Ms. Martin understands what is it like to experience illegal retaliation, having been left to start her
career from the bottom of the ladder, after working for seventeen years to reach the height of her
career. As a single mother who lost her source of support and income at age 40, she understands that,
despite any monetary relief that may eventually be granted, the is no remedy that can restore to plaintiffs
or their families for the lost years of financial hardship and damage to the quality of life caused by illegal
discrimination.
This case demonstrates, among other things, the incredible delay that a plaintiff must endure while
awaiting justice and the loss of the quality of life and family while the plaintiff waits for remedial relief.
The case was delayed largely due to Howard University's refusal to produce discovery, which they only
produced after three court orders to do so and being held in Contempt of Court in 2002. It also
demonstrates the need for severe sanctions against parties and attorneys that base their litigation on
fraudulent defenses and withhold evidence -- for years -- that prove its claims to be false.
Defendants often have mammoth financial resources. Such was the case with Howard, as evidenced by
its retention of four consecutive outside law firms, in addition to its own Office of General Counsel, to
litigate against Ms. Martin, who has been pro se throughout most of this litigation. At trial, Howard had
four of its attorneys sitting at counsel table and additional attorneys in the audience. While Howard had
its choice of any major law firm in town, and could -- and did -- substitute lawyers as it pleased, Ms.
Martin has had to accept representation by solo practitioners who were ill equipped to challenge
Howard’s battalion of lawyers. It was very difficult for Ms. Martin to find a local attorney that would
take on Howard and all of the vast resources -- no doubt, millions of dollars -- that it has chosen to
"sink" into this particular case, against Ms. Martin, representing herself, with extremely limited
resources, throughout most of this litigation.
Ms. Martin handled her case herself (pro se), conducting all discovery herself and making all of the
arguments that withstood Howard's multiple motions to dismiss and for summary judgment over a period
of seven years; however, she did not want to put herself on the stand at trial or otherwise represent
herself at trial. She therefore retained counsel for the purpose of trial. These lawyers were
overwhelmed by Howard’s many attorneys, as well as the adverse rulings by the trial Judge. During the
trial, Ms. Martin’s first lawyer, a Howard Law graduate, actually quit, in the middle of trial, and required
Ms. Martin and her paralegal to go to his office and immediately retrieve all of her files. He reported that
“lawyers all over town” were calling him during the trial, urging him to quit. Docket #432, Pl’s Motion
for an Extension of the 25 Hour Time Limitation to Complete Trial, at 8-12 See also Appellant's March
11, 2008 Motion for Sanctions against Howard University at 10-11, for its false representations to the
Court of Appeals in its Brief.
After her first counsel quit, Ms. Martin requested that she be permitted to complete the trial herself, but
Judge Hogan coerced her into taking back the attorney who quit, although he no longer even had her files
in his possession, stating that he did not want her to put herself on the stand. Under this pressure, Ms.
Martin retained the only attorney who was willing to enter the case in the middle of trial -- an
inexperienced attorney who had no opportunity to prepare for her first trial. This replacement attorney
experienced medical problems during the trial which rendered her medically incompetent to continue as
counsel.
Ms. Martin completed the last two days of the three and a half week trial herself, making her own
closing argument, cross-examining the final witness and putting herself on the stand briefly to rebut the
testimony of this final witness. At Howard's request and over Ms. Martin's vehement objection, Judge
Hogan told the jury that Ms. Martin had "discharged" both of her lawyers and opted to represent herself.
Ms. Martin challenged this instruction on appeal, but the Appellate Panel failed to address the evidence of
record regarding the withdrawal of these two attorneys; instead, the Appellate Panel simply repeated
Judge Hogan's erroneous assertion that Ms. Martin discharged both of her lawyers.
Judge Hogan forced Ms. Martin to speak of herself in the third person and to talk to herself on the stand,
asking herself questions. On appeal, Ms. Martin argued that this requirement was improper and
prejudicial, particularly since the judge did not inform the jury that he was requiring Ms. Martin to speak
of herself in that manner. Ms. Martin cited case law recognizing that people who speak of themselves in
the third-person appear to be mentally unstable. This perception decreases the witness' credibility in the
eyes of the jury. The Court of Appeals did not address this argument.
The appeals process was extraordinarily delayed because the Court Reporter, who is a member of Judge
Hogan's staff, actually withheld transcripts from Ms. Martin that she had paid for in advance. Some of
these transcripts were completed and even docketed, but kept in Judge Hogan's chambers, rather than in
the Clerk's office for the public to access them. See Plaintiff's Motion to Integrate Plaintiff's Direct Trial
Testimony into the Official, Certified Transcript. E-mail correspondence between Howard's counsel,
the Court Reporter and Ms. Martin also reveals that, while withholding the transcripts from Ms. Martin,
the Court Reporter was corresponding with Howard's counsel, requesting Howard's assistance "to
complete the transcripts."
Although the Court of Appeals did sanction the Court Reporter, (on December 19, 2006, reducing her
fee by 20%) for late production of the transcripts, no additional inquiry was made, or sanction imposed,
regarding the evidence of collusion between Howard's attorneys and the Court Reporter regarding the
transcripts. See E-mail correspondence between Howard's counsel, the Court Reporter and Ms. Martin.
Ms. Martin filed motions in an effort to obtain some means of verifying the accuracy of the transcripts
produced, in light of the apparent collusion between the Court reporter and Howard University. In its
March 7, 2007 Order, the Court of Appeals informed the parties that no audiotape of the trial was taken
in this three and a half week trial. The Court Reporter was not required to produce her own tape
recording of the trial; accordingly, Ms. Martin was deprived of any means of correcting errors or even
deliberate corruption of the transcript.
for her clients, but for herself, as a plaintiff.
As a law professor at Howard University, Prof. Martin was stalked by a delusional, homeless, serial
stalker of African-American female professors. The stalker was searching for the physical embodiment
of his "fantasy," or ideal "wife" --modeled after a fictional female character, Geneva Crenshaw, in a
book, And We are not Saved, written by the renowned Professor Derrick Bell. Harrison pursued
women who fit the "profile" of the fictitious Geneva Crenshaw. Instead of following its own security
procedures to ban the stalker from entering the law school buildings, Howard responded to Prof. Martin’
s requests for protection by refusing to renew her teaching contract. She sued Howard for sexual
harassment/hostile work environment and retaliation for reporting sexual harassment, in violation of Title
VII of the Civil Rights Act of 1964, which prohibits discrimination on the basis of sex/gender, as well as
race, color, ethnic origin and religion. Martin v. Howard University is the first to present the issue of
"gender profiling" or "working while female" in the employment context.
WATCH a television documentary about this case, on the Insider Exclusive website, with producer/host
Steve Murphy, below.
To post comments about the documentary and/or the case, go to http://www.youtube.com/watch?
v=MxyzwRGYIgA&feature=channel_page and http://alexisamoore.blogspot.com/2009/02/watch-tv-
documentary-on-federal-case.html
Ms. Martin was interviewed by Sky Radio, as part of its "Salute to Women in Leadership," summary in
Time Magazine, Global Edition, December 15, 2008. Hear her interview at http://www.skyradionet.
com/americanbiz.cfm. The interview was aired on American Airlines from December 16, 2008 through
January 31, 2009. Coincidentally, January was National Stalking Awareness Month; her interview was
particularly timely, then, since she is discussing a workplace stalking case -- her own litigation against
Howard University Law School, where she was a law professor.
Ms. Martin also discusses the case on ABC News Radio's "The Law Business Insider." which recognized
her as one of "America's Premier Lawyers." Hear her interview at http://behindtheheadlines.tv/index.php?
option=com_content&view=article&id=174:hlln-sorkin-dawn&catid=44:apl&Itemid=119.
For information of Howard's continued lack of security on campus while campus crime, including sexual
assault, increases, see http://www.myfoxdc.com/myfox/pages/ContentDetail?contentId=7525274. For
Howard's own report of crime on its campus, see
http://www.howard.edu/services/campuspolice/Statistics/default.htm and http://www.howard.
edu/services/campuspolice/documents/ANNUALREPORT20062Bedit..pdf.
2010 STATUS OF CASE
Currently pending before the Court is Ms. Martin's February 2, 2009 Rule 60(B) Motion for Relief from
Judgment, requesting a new trial, based on the Supreme Court's ruling in Crawford v. Nashville, which
was decided while Martin v. Howard was in the appellate process. The Supreme Court's decision in
Crawford clarified that it is the court's responsibility to determine whether an employee engaged in
"protected activity" under Title VII of the Civil Rights Act of 1964, when she complained to her
employer of workplace conduct that constitutes "sexual harassment."
Ms. Martin filed this motion more than a year ago, but the Court has not addressed it -- even though it is
unopposed. Howard has never filed an Opposition to this motion, asked the Court for an extension of
time to respond to the motion, or filed any document arguing that Ms. Martin has incorrectly construed
Crawford or its relevance to her case.
In her pending Rule 60(B) motion, Ms. Martin argued that the trial court erroneously submitted this
question to a jury and also failed to provide the jury with proper legal instruction on the definition of
sexual harassment -- even after the jury sent the judge a note asking for more instruction on the
definition of sexual harassment under Title VII. Once this error is corrected and the improper jury
question stricken, Ms. Martin would prevail on her sexual harassment/hostile work environment claim,
based on the jury's answers to the remaining questions, which were: 1) the harassment that Prof. Martin
endured in her workplace was severe and pervasive, creating a hostile work environment for her; and 2)
Howard failed to take reasonable steps to end the hostile work environment. Once it is established that
Prof. Martin engaged in "protected activity" when she complained of the stalker on campus, the
remaining questions regarding her retaliatory non-renewal should proceed to a new trial before a jury.
There are 2 other issues pending before the trial court: 1) The Court has held in abeyance -- since 2001
-- the mandatory Rule 37 sanctions -- of more than $364,000 -- that Ms. Martin is entitled to, from
Howard University, for its violation of discovery rules that delayed this litigation by at least 3 years; and
2) Howard's request that Ms. Martin pay to it nearly $10,000 as reimbursement for its litigation costs.
(Out of pocket costs, for deposition transcripts, photocopying and similar expenses are distinguished
from attorneys' fees. Attorneys' fees are only awarded to Defendants when the Plaintiff has filed a
frivolous lawsuit and the Court intends to punish him/her for filing it). Howard has never opposed the
Rule 37 sanctions or claimed that Ms. Martin is not entitled to it, based on hours spent on legal work to
obtain the discovery, nor has it ever challenged her entitlement to the hourly rate she has claimed. The
court placed this issue in abeyance, in a May 2001 decision, without explanation. Ms. Martin has
repeatedly asked the Court to take this issue out of abeyance and award her the compensation for
Howard's discovery violations that the Court's Rule 37 requires be paid. The Court has not responded to
any of her repeated requests in the past 9 years.
HOWARD'S CONTINUED ANTI-CIVIL RIGHTS COURT FILINGS AND REFUSAL TO
ADDRESS STALKING, SEXUAL HARASSMENT AND SAFETY ON CAMPUS
Howard University litigated this case for eleven years, under the authority of former University President,
H. Patrick Swygert, but now, under the present President, Sidney Ribeau.
Instead of protecting one of its own law professors from a serial campus stalker roaming freely through
the law school building --her workplace -- and fairly processing her application for renewal and/or tenure
track placement, Howard failed to implement its own campus banning procedures to keep this known
stalker out of the law school. Howard's administration then rejected Prof. Martin's applications for
renewal. Instead of doing anything to "right" these wrongs over the past 11 years, Howard has enlisted a
battalion of outside attorneys, paying high priced, wealthy, national employment discrimination defense
firms, with an arsenal of unlimited resources, to destroy her career and reputation. Ms. Martin had
twenty years of experience as a civil rights lawyer, in this nation's highest civil rights agencies and had
outstanding academic credentials, since she graduated from an Ivy League college and a top ten law
school. See DawnMartinbio.
In 1998, Ms. Martin began her career again, from scratch, at age 41. In 2000, she established her own
law firm to represent plaintiffs and provide consulting advise for employers who genuinely want to
establish employment policies that comply with the law.
Howard's own Faculty Senate called for Swygert's resignation, accusing him of financial and academic
mismanagement rising to "an intolerable condition of incompetence and dysfunction at the highest level."
See Washington Post April 28, 2007 article, "Howard's President to Retire Next Year; Faculty had Called
for his Removal." See also Wikipedia on Howard University. This case is a prime example of President
Swygert's financial and academic mismanagement, as well as a betrayal of Howard's civil rights legacy.
Under President Swygert, Howard further enriched at least four wealthy law firms that defend employers
in employment discrimination cases and set precedent that harms civil rights plaintiffs -- particularly
African-Americans, other minorities and women. Howard has, no doubt, paid millions of dollars to these
outside law firms to litigate this case alone, rather than restore to the faculty a professor who was much
loved by her students and whom Howard acknowledges was a very good professor.
Despite this gross mismanagement, Patrick Swygert is now teaching at the law, beginning with the 1009-
2010 academic year! Perhaps more amazingly, Alice Gresham Bullock is now the Chairperson of the
Appointments Committee! It is one thing to say that Howard's former administrators made some terrible
mistakes eleven years ago, but quite another to reward the perpetrators of these mistakes and place them,
once again, in positions to do harm. It is further a betrayal of Charles Hamilton Houston's vision of
Howard to exemplify and produce "social engineers for justice," rather than being a "parasite on
humanity." Howard is providing million of dollars to firms that by Charles Hamilton Houston's definition,
would be worse than "parasites" that do nothing to further social change. Howard has hired the firms
that fight social change and equality, making their living opposing civil rights plaintiffs filing employment
discrimination; and Howard is paying these huge, anti-civil rights firms with money provided by Howard
alumni, taxpayers funds, and private donations intended to prove educational opportunities and standards
of excellence for Howard students. The US Government contributes approximately $235 million to
Howard annually. See Wikipedia on Howard University. Howard alumni, contributors, the public and
Congress should be demand to know how much Howard paid these outside law firms and how these
expenditures, and the anti-civil rights arguments made by these firms in their filings can be justified, in
Howard's name.
PETITION BEFORE THE U.S. SUPREME COURT
Ms. Martin's asked the United States Supreme Court to review her case. See December 15, 2008 Press
Release, Petition for Supreme Court Certiorari, Reply to Howard's Opposition to Petition for Certiorari,
and Petition for Rehearing. The Supreme Court initially declined to review the case, but, nine days later,
the Court decided Crawford v. Metropolitan Government of Nashville and Davidson County, Tenn., -- U.
S. --, 2009 WL 160424 (U.S.) (2009), a Title VII case, like Martin, involving sexual harassment and
retaliation for opposing sexual harassment. On February 9, 2009, Ms. Martin filed a motion to
supplement her previous filings to rely on the Court's controlling decision in Crawford. If the Court
reviews Martin under its holding in Crawford, it should reverse the court ruling and vacate the jury
verdict, which was based on improper legal instructions from the trial judge.
WEBSITES URGING SUPREME COURT REVIEW/DISCUSSING SIGNIFICANCE OF CASE
See recent discussions of the importance of this case to all working women and to stalking victims at:
http://www.womensenews.org/article.cfm/dyn/aid/3880
http://alexisamoore.blogspot.com/2009/02/watch-tv-documentary-on-federal-case.html
http://alexisamoore.blogspot.com/2009/01/its-not-end-of-line-tomorrow-no-matter.html
http://peace4missing.ning.com/group/domesticeviolence/forum/topic/show?id=2153128%3ATopic%
3A34467&xgs=1
http://alexisamoore.blogspot.com/2008/12/dawn-v-martins-pursuit-of-justice-for.html (comments posted)
http://lawprofessors.typepad.com/adjunctprofs/2008/11/cert-petition-p.html
http://alexisamoore.blogspot.com/2008/11/111408-us-supreme-court-will-decide.html
http://womeninbusiness.about.com/od/smallbusinesslegalissues/a/martinvhoward.htm,
comments uploaded on
http://womeninbusiness.about.com/b/2008/05/03/law-establishes-women-can-be-fired-for-being-stalked-
by-a-non-employee-at-work.htm#gB;
http://www.illinoissexualharassmentattorneyblog.com/2009/01/sexual_harassment_issues_to_be.html
http://74.125.95.132/search?q=cache:plhPAjbBSo4J:kaauwpassions.blogspot.com/2008/10/supreme-
court-hears-harassment-case.html+%22Martin+v.+Howard+University%
22&hl=en&ct=clnk&cd=109&gl=us
http://74.125.45.132/search?q=cache:5wobB-suYSIJ:blog.lib.umn.edu/lawlib/lexlibris/+%22Martin+v.
+Howard+University%22&hl=en&ct=clnk&cd=23&gl=us
Womanist Musings at http://74.125.45.132/search?q=cache:4YdYu_tMx0IJ:www.womanist-musings.
com/2008/11/can-woman-be-fired-from-her-job-for.html%3FwidgetType%3DBlogArchive%
26widgetId%3DBlogArchive1%26action%3Dtoggle%26dir%3Dclose%26toggle%3DYEARLY-
1199163600000%26toggleopen%3DMONTHLY-1228107600000+%22Martin+v.+Howard+University%
22+and+%22H.M.%22&hl=en&ct=clnk&cd=4&gl=us
http://alexisamoore.blogspot.com/2008/08/working-while-female-supreme-court.html;
http://alexisamoore.blogspot.com/2008/05/law-professor-will-ask-us-supreme-court.html
http://appetiteforequalrights.blogspot.com/2008/05/no-justice-for-stalking-victims.html;
http://www.feistyaphrodite.com/2008/06/law-professor-seeking-us-supreme-court-reversal-that-holds-
woman-can-be-fired-for-being-stalked-at-workplace
The National Association of Women Lawyers ("NAWL"), posting its Amicus Brief at
http://www.abanet.org/nawl/publicservice/home.html,
The American Association of University Women (AAUW) Legal Advocacy Fund,
http://caonlinelaf.blogspot.com/2008/05/gender-profiling.html,
http://twvblog.blogspot.com/2008/05/in-support-of-dawn-v-martin-and-her.html,
http://taasa.org/taasa_blogs/?p=381#comments;
http://remodel4life.blogspot.com,
http://alexisamoore.blogspot.com/2008/05/martin-v-howard-university-personal.html.
http://www.justicewomen.com/archives/2008/25-May-2008_to_01-Jun-2008.php
www.hklaw.com/id24660/PublicationId1663/ReturnId31/contentid47645 - 53k (this is a website of a
major employer defense firm, which also represents Howard University on other cases, though not in
this case)
http://www.venable.com/docs/pubs/761.pdf (this major employer defense law firm is actually THE
PRIMARY OUTSIDE LAW FIRM that has been defending Howard in this case since 2002 --though it
was not defense counsel in this case when it posted this summary of the case in 1999)
http://murphymilanojournal.blogspot.com/2008/11/can-woman-be-fired-from-her-job-for.html
Martin v. Howard University is also cited in numerous treatises, law review articles and websites, dating
back to 1999.
http://www.washingtoncitypaper.com/blogs/sexist/2008/11/03/howard-stalker-case-could-go-to-
supreme-court/
THE BIZARRE FACTS OF STALKING AND EMPLOYER RETALIATION
Stalked by a Delusional, Serial Campus Stalker at the Law School
On November 20, 1997, Prof. Martin received Harrison's letters and telephone message, stating that he
needed her "more than anything" and hoped that she was the "wife" he envisioned. Prof. Martin reported
Harrison's harassment to the Law School Dean's Office, the only Howard Campus Security officer on
duty on the Law School Campus (located at Connecticut and Van Ness Avenues, not on the Georgia
Avenue main campus), Officer Sirleaf. The Dean's office refused to assist in her filing a criminal
complaint, but suggested that she file one on her own. In order to be taken more seriously by the police
department than if she filed the complaint alone, Prof. Martin enlisted the assistance of Officer Sirleaf
facilitate the meeting with the D.C. Metropolitan Police Department (MPD).
The D.C. Police Department characterized the harassment as "stalking." Criminal "stalking" is defined by
the D.C. Criminal Code as severe forms of harassment that are threatening or annoying and processed
Prof. Martin's complaint as a criminal stalking complaint. Howard Campus Security Officer Sirleaf also
filed a campus police report. MPD and Officer Sirleaf advised the Law School ban Harrison from
campus and post notices and mug shots to inform the law school community that he was banned.
Even as of five days after Prof. Martin reported Harrison's harassment to the Dean's office, the Law
School had failed to follow the advice of MPD and its own campus security officer, Officer Sirleaf.
Harrison was still walking freely in and out of the Law School buildings and was seen using the Law
School Library. No signs or mug shots had been posted, even though Harrison had a criminal record
and a history of violence, according to both MPD and the homeless shelter that had just evicted him for
violent behavior. Prof. Martin therefore reduced her requests for protection to writing. See November
25, 1997 memo asking for protection from Harrison. See also Prof. Martin's December 2, 1997 memo
detailing Harrison's attempt to enter her office and Officer Dowdy's "chase" of Harrison off the Law
School Campus (at Connecticut and Van Ness Avenues) and into the woods; and Prof. Martin's
December 18, 1997 memo to Associate Dean Newsom, again requesting that a notice be posted banning
Harrison from campus, in accordance with Howard's own campus security policies and procedures. In
support of Ms. Martin's case, Howard Campus Security Officers Sirleaf and Dowdy testified at trial, as
did MPD Detective Brian Henry, who was assigned the stalking investigation. Both in their depositions
and at trial, Officers Sirleaf and Dowdy, as well as former Howard University Director of Security
Dawson, testified that Howard failed to follow its own security policies in response to Prof. Martin's
case. You can actually hear Officer Sirleaf comment on the case by listening to the Burnie McCain radio
interview of Prof. Martin uploaded above. Officer Sirleaf actually called into the radio show to
corroborate Ms. Martin's complaints and confirm that Howard failed to protect her and retaliated against
her. Officer Sirleaf was still employed at Howard at the time that he made these comments on the radio.
Dean Bullock had represented to Prof. Martin, in a December 1, 1997 memo, that she was discussing
security matters with Mr. Dawson, in response to her November 25, 1997 memo regarding Harrison .
Howard had claimed, for years, that Dean Bullock informed Mr. Dawson of Prof. Martin's written
complaints regarding Harrison's stalking and that Mr. Dawson was involved in developing a plan for
protecting Prof. Martin from Harrison. When Mr. Dawson was finally deposed, he testified that Dean
Bullock never informed him of Prof. Martin's complaint or anything about Harrison. He also detailed the
precautions that he would have taken, pursuant to Howard's own security policies and procedures, had
Dean Bullock consulted him. Confronted with Mr. Dawson's testimony, Dean Bullock finally admitted
that she never discussed the stalking with Mr. Dawson, any other person in campus security or the D.C.
Police department.
Howard's lawyers tried to discredit its own security officers on the stand, but the officers stood fast to
their testimony -- even though one was still an employee of Howard, with 30 years seniority and the
former officer's wife works in the office of the Law School Dean. The former officer expressed
concerns about possible retaliation against his wife for his testimony, but felt obligated to tell the truth on
the stand. Ms. Martin will always be extremely grateful to these officers -- Officers Sirleaf and Dowdy
-- for their integrity and courage.
Similarly, Ms. Martin is grateful to Howard's most senior Law School faculty members, Prof. Spencer
Boyer and Henry Jones, who were part of the legacy of civil rights now claimed by Howard. Profs.
Boyer and Jones, as well as Prof. Sherman Rogers, offered deposition support for Prof. Martin in the
case, although their testimony was not admitted at trial. Prof. Boyer has taught more African-American
lawyers than any other professor in the country. He testified that he and the other senior members of the
faculty had read the primary filings in the case and believe that Ms. Martin should prevail and be
reinstated at Howard Law School to be their colleague again. Ms. Martin has requested reinstatement as
part of the remedy for her retaliatory non-renewal, as discussed below.
Retaliation for Reporting Stalking at the Law School
Instead of following Howard's own security procedures to bar Harrison from the law school, Dean
Bullock ensured that Prof. Martin's teaching contract was not renewed. Prof. Martin had excellent
teaching evaluations. Many of her students wrote letters and signed petitions to Dean Bullock in protest
protests of her non-renewal. Dean Bullock improperly interfered with the hiring process by expressing
her disfavor with Prof. Martin to the Vice Chair of the Appointment Committee, Prof. Andrew Taslitz
and Associate Dean Michael Newsom; thereafter, Prof. Taslitz represented the status of Prof. Martin's
publications, as well as those of a junior visiting professor, to his colleagues in a manner that made them
believe that the junior professor had a superior record of scholarship. The remaining four members of
the Appointments Committee therefore selected the junior professor to teach the equal employment law
that Prof. Martin had been teaching for two years at Howard, and four years total. Dean Bullock then
assigned a new professor to take over her Torts I and II classes. In fact, a simple glance at the
candidate's resumes and/or applications revealed that it was Prof. Martin who had the superior record of
scholarship.
For years, Howard claimed that the junior visiting professor selected had her article published, as of
December 18, 1997, when the Appointments Committee selected her to take over the Equal Employment
Opportunity (EEO) Law class that Prof. Martin had been teaching at Howard for the previous two
years. In fact, this selectee, junior visiting professor's article, was not actually published until a year
later, in the Winter of 1998. For years, while withholding discovery until it was held in Contempt of
Court in 2002, Howard also claimed that Prof. Martin's article was not even completed, as of December
18, 1997; however, once deposed, all of the members of the Appointments Committee testified that they
actually knew that Prof. Martin's article was not only completed by that date, but also accepted for
publication as of that date. Prof. Martin's article was published, by the New York University Journal of
Law and Policy, at the same time as was the junior visiting professor, in the Winter of 1997. Prof.
Martin also had published prior to joining Howard's faculty -- which Howard acknowledged on its own
website and in the memo recommending Prof. Martin's hire two years earlier. The selectee had
published no articles since graduation from law school, as of December 18, 1997. Prof. Martin was a
recognized national expert in EEO law, had helped develop national policy in the area at the EEOC and
had taught it for four years. The junior selectee had limited experience in EEO law and had never
previously taught it.
In addition to the advertised EEO position filled by the junior visiting professor, Dean Bullock left at least
three additional faculty positions vacant, rather than to allow the Appointments Committee to consider
Prof. Martin for one of them. At the same time, students were clamoring for courses and protesting the
fact that there were not enough courses for them to meet their graduation requirements, nor were there
enough professors to teach them. Appointments Committee member, Prof. Nolan, testified that she
directly asked Dean Bullock whether there were any additional vacancies so that the Committee could
recommend that Prof. Martin fill one of them. Dean Bullock actually lied to Prof. Nolan, telling her that
there were no more vacancies. In her Answer to the Complaint, Dean Bullock admitted that, in fact,
there were at least three tenure-track vacancies at the time. Ms. Martin presented the jury with a Chart
of Howard's ever-changing and conflicting purported defenses to its refusal to renew her contract.
Shocking trial testimony came from Prof. Isaiah Leggett, the then Chair of the Appointments Committee,
now the County Executive for Montgomery County, Maryland and reputed to be a contender for
Governor of the State of Maryland. Adding yet another changing defense to Howard's list, Ike Leggett
attempted to defend against charges of sex discrimination and retaliation with an admission of age
discrimination. He actually testified that he voted to reject Prof. Martin, in favor of the less experienced
applicant, to give the "young rookie" a chance. He compared law professors to football players. Prof.
Leggett was the Director of the County Human Rights Division for ten years and has built his political
career on portraying himself as a civil rights advocate; yet, not only did he participate in covering up
Bullock's retaliatory actions against Prof. Martin for reporting sexual harassment, but he personally
admitted to committing illegal age discrimination. Ms. Martin has therefore asked to amend her
Complaint to add in a claim under the Age Discrimination in Employment Act (ADEA).
It is also worth noting that, while Prof. Martin was removed from the faculty, the same Appointments
Committee, during the same year, granted tenure to Prof. Reginald L. Robinson, despite complaints that
Prof. Robinson's "sexual jokes," which he repeatedly e-mailed to faculty and staff, were offensive and
might cause Howard to be faced with a claim of hostile work environment on the basis of gender. This
and other events at that time reflected Howard Law extreme insensitivity to issues of sex discrimination
and sexual harassment, as well as a disregard for accountability, under the law, for sexual harassment.
THE STATUTORY AND COMMON LAW CLAIMS IN MS. MARTIN'S LAWSUIT
Title VII: Sexual Harssment/Hostile Work Environment
Ms. Martin sued Howard under Title VII of the Civil Rights Act of 1964 and the D.C. Human Rights Act,
which prohibit discrimination on the basis of sex/gender. The Supreme Court has held that Title VII
prohibits sexual harassment when the harassment is based on sex. This means that harassment that is
directed at women, but not men, or vice-versa, is illegal under Title VII. (Title VII also prohibits
discrimination on the basis of race, color, national origin, and religion.) Sexual harassment occurs then
harassment is based on sex/gender (or is sexual in nature) and it is severe and pervasive, rising to the
level of creating a hostile work environment for the employee.
The precedent set in this case adds to the legal definition of sexual harassment. Although the Appellate
Panel stated that its ruling against Ms. Martin does not mean that stalking can never constitute sexual
harassment, it is difficult to imagine a case that would meet the Panel's standards, based on its ruling in
Martin. In this case, Prof. Martin did not know her stalker. He was a complete stranger and a serial
stalker, roaming through the law school. There is no way that the employer could "blame the victim" for
bringing the stalker to the law school.
How much more difficult will it be for victims of domestic violence and women whose stalkers are ex-
husbands or ex-boyfriends to seek protection from the courts when they are fired for being stalking
victims? In fact, at oral argument, Howard's attorney, Brian L. Schwalb, specifically argued that ruling
in Ms. Martin's favor "would sweep into Title 7 analysis and discrimination analysis anytime ... a woman
is the subject of a stalking or a domestic violence issue .... " See Transcript of Oral Argument, page 16,
lines 1-12.
Of course, neither Ms. Martin nor Amicus Curiae, the National Association of Women Lawyers, ever
argued that the employer should be held responsible for domestic violence issues or stalking outside of he
workplace. They only argued that Title VII requires the employer to take reasonable steps to end
stalking against women in the workplace and prohibits the employer from firing or otherwise retaliating
against the woman who is being stalked. They argued that a woman should not have to choose between
her job and her safety. They also pointed out that, if a woman can be fired for informing her employer
that she is being stalked, then women will be afraid to report it -- and the employer will not be prepared
to prevent violence in the workplace or harm to that employees or others who may become "collateral
damage" in a workplace attack on the intended victim.
Title VII: Retaliation.
Title VII includes an anti-retaliation provision that prohibits an employer from taking any adverse action
against an employee for asserting their rights under Title VII. Even in "employment at will" jurisdictions,
Title VII and other anti-discrimination employment laws (such as the Age Discrimination in Employment
Act and the Americans with Disabilities Act) prohibits an employer from firing a person who has
complained about discrimination, including sexual harassment. In order to be protected against
retaliation, the employee's complaint had to be about conduct that constituted sexual harassment or at
least that the employee, in good faith, believed was sexual harassment or other discriminatory behavior
prohibited by Title VII. The Court of Appeals held:
"The District Court limited Ms. Martin's retaliation claims to two alleged harms-the
decision of Howard Law not to hire her for a tenure-track position in equal employment
opportunity law and her expulsion from her office. Any challenge to these alleged harms
is now moot. Because the jury reasonably found that Ms. Martin had not engaged in
protected activity, the necessary predicate for her claims of retaliation is missing."
March 31, 2008 U.S. Court of Appeals Decision, page 4. In other words, since the jury concluded that,
although Leonard Harrison stalked Prof. Martin in her workplace, the evidence did not prove that
Harrison targeted her because she was a woman, there was no statutory protection against any type of
retaliation that Howard might have taken against her for being stalked in her workplace. Since the Court
determined that Harrison's stalking of Prof. Martin did not constitute sexual harassment within the
meaning of Title VII, Howard was free to fire her, decline to renew her contract, fail to promote her,
reject her for a tenure-track faculty position or even a renewed visiting contract for a year. The
precedent set for all stalking victims, then, is not even about the specific type of retaliation that Howard
took against Prof. Martin, but rather, the question of whether the employer is permitted, by law, to
retaliate against stalking victims. If so, that retaliation can take any form at all, including immediate
termination.
State Common Law Claims. In addition to her federal and D.C. Statutory anti-discrimination law
claims under Title VII and the D.C. Human Rights Act, Ms. Martin raised three common law state
claims, intentional infliction of emotional distress, wrongful discharge and breach of contract. These
claims are completely separate and distinct from her Title VII claims. The outcome of one does not
affect the outcome of the other, as a matter of law.
Wrongful Termination.
Ms. Martin and NAWL argued that, if Ms. Martin's "non-renewal" is not prohibited by the retaliation
provisions of Title VII or the D.C. Human Rights Act, then it should be prohibited under the common
law doctrine of "wrongful termination" as violating public policy. Some jurisdictions, including the
District of Columbia, recognize "wrongful termination" as an exception to the "at will employment"
doctrine. Ms. Martin and NAWL argued that it violates public policy to fire a woman because she was
stalked in her workplace by a delusional, serial stalker who only knew of her existence because of where
she worked. The Appellate Panel ignored this argument.
Intentional Infliction of Emotional Distress.
The District Court dismissed Ms. Martin's intentional infliction of emotional distress claim in 1999.
Martin v. Howard University and Alice Gresham Bullock, 1999 U.S. Dist. LEXIS 19516, 81 FEP Cases
964 (BNA), 15 IER Cases 1587 (D.D.C. 1999). The Court held that no reasonable jury could find Dean
Bullock's conduct -- which included subjecting her to a dangerous serial stalker on campus, without
protection, and then taking away her career and livelihood by ensuring that her contract would not be
renewed by the Appointments Committee -- "outrageous" enough to justify a claim of Intentional
Infliction of Emotional Distress . The jury therefore never heard this claim. The Panel affirmed this
holding, with virtually no discussion of her arguments. Ms. Martin will raise this claim again before the
Supreme Court.
Breach of contract.
Although Ms. Martin is raising the evidentiary errors at the Supreme Court level, she does not need to
prevail on her breach of contract claim to prevail on her Title VII claims. The breach of contract claim
is simply an alternative, separate legal theory under which she seeks redress. In fact, if she prevails on
her Title VII retaliation claim, she will be entitled to all remedies also available to her under a breach of
contract claim, which would arguably make her breach of contract claim moot.
Ms. Martin's breach of contract claim was based on her hiring negotiations with Appointments
Committee Vice Chair Andrew Taslitz, who recruited her from her tenure-track teaching position at
Cleveland-Marshall College of Law to come to Howard. This claim was the most difficult to prove
because the burden was on Ms. Martin to prove that Prof. Taslitz made certain promises and
representations to her, that if she accepted a visitorship, guaranteed in writing for at least two years,
Howard would "slide" her into a tenure-track position as soon as one became available.
Ms. Martin's claims were supported by circumstantial evidence that Howard had a pattern and practice
of treating its visiting professors like tenure-track professors, renewing them for as long as even ten
years, and converting them to tenure-track or even tenured positions when they became available.
The Howard University Faculty Grievance Committee, in its Report on Prof. Martin's Grievance, found
that "Professor Dawn V. Martin was not given due process" and that "her academic freedom, rights and
privileges may have been violated." The Committee also found Prof. Martin's breach of contract claim
"has merit:"
Professor Martin stated ... that Professor Andrew Taslitz 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 of 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 the
position announcement appears to want a person without experience.
Howard University Law School refused to recognize the jurisdiction of its own University's Grievance
Committee and refused to participate in the Grievance process. Rather then continue the fight within the
University, and to preserve her procedural rights to sue on her federal claims, Prof. Martin filed her
lawsuit in federal court. The trial judge refused to admit the University Grievance Committee's Report
into evidence, so the jury never saw it or knew of its conclusion. The jury found that Ms. Martin did not
carry her burden of convincing them on this issue; however, as she argued in her Brief, the trial judge
excluded evidence that further supported her allegations and admitted evidence that was irrelevant and
prejudicial, while excluding Ms. Martin's rebuttal evidence. Ms. Martin argued that these evidentiary
rulings, and other prejudicial conduct of the trial judge, unduly prejudiced her case on this issue. This
issue was not addressed by NAWL, since this claim is primarily fact specific and does not establish legal
precedent that is likely to impact upon women as a group.
THE TRIAL
When Martin v. Howard University finally went to trial, in April of 2006,Howard never disputed the
specific conduct of Harrison. Instead, Howard first argued that the harassment was minor, rather than
severe and pervasive, and did not create a hostile work environment for Prof. Martin; however, after
Howard's own administrators -- including Dean Bullock and Associate Dean Newsom, as well as
Howard's own campus security officers and D.C. MPD detective testified that Prof. Martin's fear of
Harrison was well founded, Howard next argued that it took reasonable measures to end the harassment.
When called upon to produce evidence of such reasonable steps however, Howard could not do so.
Instead, Dean Bullock admitted that she did nothing to ban Harrison from the campus and never even
discussed the matter with the Director of Howard Security, although she had written, in a December 1,
1997 memo to Prof. Martin, that she was enlisting the Director's assistance to address the stalking.
THE JURY VERDICT
The jury agreed with Prof. Martin, that Harrison's harassment of her was severe and pervasive, creating
a hostile work environment for her. Jury Verdict, Questions # 1(a). The Jury Verdict Form page 1,
reads:
1. Did the Plaintiff prove by a preponderance of the evidence that:
a) Mr. Harrison subjected her to conduct that was sufficiently severe and pervasive to alter the terms and
conditions of her employment?
__X___ YES ______ NO
b) Mr. Harrison’s conduct was unwelcome?
__X___ YES ______ NO
c) Mr. Harrison’s conduct was sexual in nature or because of Plaintiff’s gender?
______ YES __X__ NO
d) Howard University knew or should have known of the alleged conduct?
__X___ YES ______ NO
e) Howard University failed to take proper remedial action that was reasonably calculated to end the
harassment?
__X___ YES ______ NO
Jury Verdict, Question # 1(a)-(e). See also discussion in Ms. Martin's Appellate Brief, pages 8-9; 11-23;
Amicus Brief of the National Association of Women Lawyers (NAWL), pages 9-17.
The jury also concluded that Howard knew or should have known of Harrison's harassment, bu failed to
take proper remedial action to end it. Jury Verdict, Questions # 1(d)-(e); however, oddly, and
contradicting Judge Hogan's finding of law in his 1999 decision, the jury determined that the harassment
was not "sexual in nature" or based on her sex/gender. Jury Verdict, Questions # 1(c). The answer to 1
(c) determined the entire Title VII case and resulted in a verdict for the defendant. There is no federal of
D.C. Statute prohibiting discrimination against stalking victims. (New York is one state that does have
an anti-retaliation stalking victims' statute.) Title VII only applies if the harassment is based on race, sex,
color, national origin or religion. Although some jurisdictions have upheld "wrongful discharge" claims
where plaintiffs have been retaliated against for being victims of stalking, domestic violence or other
violent acts, neither the district court or the Appellate Court in Martin recognized the argument, although
both Ms. Martin and NAWL made the argument in their Briefs.
The jury’s answer to the question of whether Harrison harassed Plaintiff based on her sex disposed of
this case, both with respect to Plaintiff’s sexual harassment/hostile work environment case and her
retaliation case. Because the jury found no “protected activity,” Title VII could not be invoked to
prevent Howard from retaliating against Prof. Martin -- even if Howard decided not to renew her
specifically and expressly because she asked for protection from the serial campus stalked in her
workplace. This ruling of law allows an employer to legally retaliate against a stalking victim without
violating Title VII, even where, as here, the stalker harassed Prof. Martin and other women who fit the
professional profile of his ideal "wife," to try to convince them to become his "wife."The jury was clearly
confused about the definition of sexual harassment and harassment on the basis of sex, as indicated by
its request for additional instruction on the legal definition of sexual harassment. See Jury Request for
additional instruction. The judge refused to provide the requested additional instruction.
In 1999, the district court judge said that it was "clear" that Harrison harassed Prof. Martin based on her
sex –but seven years later, after all of the evidence was presented at trial, the same judge suddenly
submitted the question to the jury. Howard argued that stalking -- even here, where the stalker harassed
Prof. Martin and other women to become his "wife" -- was separate and distinct from sexual
harassment, and not covered by Title VII of the Civil Rights Act of 1964, which prohibits discrimination
and harassment on the basis of sex/gender. Based on confusing jury instructions on the law of sexual
harassment, and what they understood the law to be, the jurors concluded that Harrison’ stalking was
not sexual in nature or based on Prof. Martin's gender. That meant that there is no statute to protect her
from being stalked in her workplace or from being fired for reporting it.
APPELLATE BRIEFS
The Appellate Briefs may be accessed through the links below:
1) Ms. Martin's April 29, 2008 Petition for Rehearing, En Banc (includes March 31, 2008 Appellate
Decision in the Appendix;
2) Brief of Dawn V. Martin, Esquire, Appellant's Brief;
3) Amicus Curiae Brief (friend of the Court), by The National Association of Women Lawyers;
4) Howard University Brief; Appellee # 1 Response Brief;
5) Alice Gresham Bullock Brief, Brief of Alice Gresham Bullock, Esquire, Appellee #2 Response Brief; and
6) Martin Reply Brief responding to Appellees' arguments.
The National Association of Women Lawyers ("NAWL") filed an Amicus Curiae Brief (friend of the
court) in support of Ms. Martin. NAWL's Brief outlines the issues it believes will affect the rights and
safety of women at work. NAWL is the leading national voluntary organization devoted to the interests
of women lawyers and women's rights. NAWL has historically served as an educational forum and an
active voice for the concerns of women in the legal profession.
The Joint Appendix, submitted to the Appellate Court with the Briefs, consisted of the entire District
Court Record (over 14,000 pages long, spanning an 8-year period of court filings) -- including the full
trial transcript. See Table of Contents for Joint Appendix. The Briefs cite the specific page number of
the Joint Appendix containing the evidence (exhibit or witness testimony) that the party is relying upon to
support each factual statement made in the Briefs.
THE MARCH 31, 2008 DECISION APPEALED TO THE SUPREME COURT
On March 17, 2008, a three-judge Panel of :the United States Court of Appeals for the D.C. Circuit
(Judges Edwards, Henderson and Williams), heard oral argument in the appeal in the case. Ms. Martin
told the Panel:
“The precedent set by this Court will determine how employers and educational institutions will
respond to stalking and other types of workplace and campus violence – particularly when it is
directed against women. If a woman can be stalked in her workplace, and fired for asking her
employer to take reasonable steps to keep him out of the workplace, then women will be forced
to choose between their safety and their livelihood – a Hobson’s choice.”
Less than two weeks later, the Panel issued a March 31, 2008 unpublished decision. (No individual
judge claimed "credit" for writing the decision.) The Court held:
"The District Court limited Ms. Martin's retaliation claims to two alleged harms-the
decision of Howard Law not to hire her for a tenure-track position in equal employment
opportunity law and her expulsion from her office. Any challenge to these alleged harms
is now moot. Because the jury reasonably found that Ms. Martin had not engaged in
protected activity, the necessary predicate for her claims of retaliation is missing."
March 31, 2008 unpublished decision at page 4. In other words, since the jury concluded that, although
Leonard Harrison stalked Prof. Martin in her workplace, the evidence did not prove that Harrison
targeted her because she was a woman, there was no statutory protection against any type of retaliation
that Howard might have taken against her for being stalked in her workplace.
This decision, disturbingly, allows an employer to fire a woman for being stalked -- even here, where the
harasser is a delusional, serial stalker of African-American women professors, allowed to roam freely
through her workplace -- a law school campus of a national University touted for its civil rights legacy.
The Panel squarely placed women in the "Hobson's choice" position warned by Ms. Martin, forcing them
to choose between their jobs and their safety, if they are stalked at work.
The Panel's brief March 31, 2008 disposition of the case failed to even address several of the most
important legal issues raised in both Ms. Martin's Brief and the Amicus Curiae Brief of the National
Association of Women Lawyers. This means that the lower court decisions that did address these issues
remain intact, as the legal precedent for the District of Columbia Circuit. See relevant district court
decisions. The errors in these decisions are detailed in the Appellate Briefs.
On April 29, 2008, Ms. Martin filed a Petition for Rehearing En Banc, asking the entire court to review
the decision. On May 20, 2008, the Clerk of the Court denied the petition, since no judge had called for
a vote on the matter. Ms. Martin filed a Petition for Supreme Court review. The National Organization
for Women (NOW), the National Association of Women Lawyers (NAWL) and additional women's and
civil rights advocacy groups filed an Amicus Curiae (friend of the Court) Brief urging the Supreme Court
to hear the case. Unfortunately, the Supreme Court did not hear the case. The Supreme Court receives
7,000-9,000 Petitions, or requests to hear cases per year. It can only hear less than 100 cases. Any
Petition for the Supreme Court is, therefore, a "longshot;" nevertheless, the case did get substantial
coverage on the internet and among women's groups. Hopefully, it will serve to raise awareness on the
issue of stalking and workplace violence and perhaps result in federal legislation that mirrors New York
City's Human Rights Law, which protects employees from discrimination and retaliation for being
victims of stalking or domestic violence.
The arguments made by Ms. Martin and the Amicus groups are summarized below, but set forth in more
detail in the Briefs of Ms. Martin and NOW/NAWL.
JUDICIAL ERRORS IN THE APPELLATE PANEL'S MARCH 31, 2008 DECISION
(See Petition for Rehearing En Banc for a full discussion)
Errors in the Definition of Sexual Harassment or Harassment Based on Sex
The Appellate Decision Left Intact the District Court's Holding that the
Absence of "Groping" or "Touching" can Defeat a Sexual Harassment Claim
The district court held that “groping” and “touching” are “typical” indicia of sexual harassment cases and
that since Harrison did not touch Prof. Martin, the jury had reason to find that she was not sexually
harassed.” The Court of Appeals did not address this issue. Since it has not been overturned, this
precedent set by this decision arguably requires a woman to be assaulted in order to establish that she
was sexually harassed in her workplace. This holding flies in the face of Supreme Court precedent and
sets sexual harassment law back more than thirty years in the District of Columbia.
The Appellate Court Ignored the Fact that the Stalker "Profiled" Prof. Martin,
on the Basis of her Gender
Martin is the first known case posing the concept of “gender profiling” in employment, under Title VII
of the Civil Rights Act of 1964, which prohibits discrimination on the basis of sex. Harrison pursued
only women to be his "wife" and stalked or harassed them on that basis. He specifically selected women
of color who were lawyers and/or professors specializing in civil rights law, particularly involving issues
of race. These are the characteristics of the fictional female character, Geneva Crenshaw, in Prof.
Derrick Bell's book, And we are not Saved. Harrison had decided that the "real" Geneva Crenshaw
should be his wife and set out on a quest to find her -- a quest that spanned at least 12 years and was
continuing after he stalked Prof. Martin.
Martin also raised the issue of "gender profiling" in the employment discrimination context. Just as
"racial profiling" targets victims based on race, victims are "profiled" on the basis of their sex when they
are targeted for harassment because they fit a certain "profile" that is dependant upon gender. Just as
"driving while Black" creates a disproportionate risk of arrest for African-Americans, "working while
female" creates a disproportionate risk of being stalked or otherwise harassed in the workplace. This may
occur when a harasser targets a woman because she resembles a character in a book or a celebrity. The
harasser may also target a woman to fulfill a gender specific role, such as "wife," "mother" or
"daughter."
The precedent set in Martin, with respect to gender, will also apply to racial profiling and profiling based
on other protected categories such as race, national origin, age, disability or religion. The implementation
of EEOC Regulation 29 CFR 1604.11(e), affects not just women, with respect to sexual harassment, but
also other racial, ethnic, religious, age and disability groups unprotected where they are targeted for
harassment, in the workplace, by non-employees (e.g., Maupin v. Howard County Board of Education,
Howard County, Maryland Circuit Court (July 2, 2007) (an African-American teacher received
intimidating calls at work from a purported member of Ku Klux Klan and her request for security was
denied).
Ms. Martin and NAWL cited Supreme Court and additional case law on holding that the test of whether
the harassment is based on sex is whether the harasser would have similarly harassed the plaintiff had
she been a man. These "sex plus" other factors cases hold that if sex/gender is one of the factors used
to target the victim, then the conduct constitutes discrimination on the basis of sex/gender. The facts of
this case clearly demonstrated that Harrison would not have pursued Prof. Martin to be his wife had she
been a man -- nor would he have hoped that she was the "real" Geneva Crenshaw if she had been a man
and that sex/gender was the foremost criterion used by Harrison to select his victims. The Appellate
Panel ignored this argument.
The Appellate Panel Ignored Former Dean Bullock's Perjury, Proven by her own
July 1, 1999 Memo Directly Contradicting her Trial Testimony
In Dean Bullock's July 1, 1998 memo to Howard's General Counsel, in response to Prof. Martin's EEOC
charge, she expressly acknowledged that, when she read Prof. Martin's November 25, 1997 memo to
Dean Bullock detailing Harrison's stalking of her on campus, she and Associate Dean Newsom perceived
Harrison as a serious threat to Prof. Martin and "other women" on campus whom Harrison might "stalk"
or "otherwise harass;" yet, at trial, Prof. Bullock testified that she did not perceive Harrison's pursuit of
Prof. Martin to be based on gender.
Federal Rule of Civil Procedure 60(b) prohibits a party from prevailing in case based on fraud. As set
forth in Ms. Martin's Brief, case law holds that perjury constitutes fraud, within the meaning of Rule 60
(b) and compels vacating the jury's verdict, which was based on former Dean Bullock's perjury on the
deciding issue in the case. Neither Howard nor Prof. Bullock's personal attorney have denied that former
Dean Bullock committed perjury at trial. Instead, Howard's Brief and Bullock's Brief both argue that
perjury does not require vacating the jury’s verdict. Howard's position is neither morally nor legally
defensible; yet, the Appellate Panel did not address it.
The Appellate Panel Erroneously Held that Harrison Harassed Prof. Martin because
he "Misidentified" her as his Wife and that Harassment Based on "Misidentification:
Did not Constitute Harassment Based on Sex/Gender
The Appellate Panel adopted Howard's misrepresentation that the stalker, Harrison, "misidentified" Prof.
Martin as his "estranged wife" and that this somehow negated his targeting of her as a woman. This
conclusion was wrong both on the law and the facts. First, even if Harrison had mistaken Prof. Martin
for a real "wife," he could not have mistaken her for his wife had she been a male. This would still mean
that he harassed her on the basis of her sex -- even if sex were not the only criterion.
Second, this conclusion is factually baseless. The record is clear that there was never any real "wife."
Harrison's letters reveal that there is only his delusional vision of a woman whom he wanted to be his
wife -- based on a fictional female character in a book. Harrison could not have "misidentified" Prof.
Martin for a woman who does not even exist!
The Appellate Panel Ignored the Ms. Martin's and NAWL's Argument that
Stalking Constitutes Harassment on the Basis of Sex because 80% of all
Stalking Victims are Women
Both Ms. Martin and NAWL argued that stalking constitutes harassment on the basis of sex because
80% of all stalking victims are women, citing Justice Department statistics. They argued that the
disparate impact theory of discrimination should be applied, rather than requiring the plaintiff to prove
that the stalking was based expressly on sex. The Appellate Panel ignored this argument.
The Appellate Panel Ignored Ms. Martin's and NAWL's Argument that the Stalker's
Pursuit of Prof. Martin to become his "Wife" was Inherently Sexual in Nature
Both Ms. Martin and NAWL argued that marriage, as a matter of law, is an inherently sexual relationship,
citing case law that permits divorce where a spouse withholds sex from the other, without recognized
justification. The Appellate Panel ignored this argument as well.
The Appellate Panel Erroneously Held that, in 1999, Judge Hogan did not Hold
that Harrison's Harassment of Prof. Martin was Based on Sex, as a Matter of Law,
Based on the Undisputed Facts
The Court of Appeals held that Ms. Martin misinterpreted Judge Hogan’s 1999 decision; however, on
October 20, 2003, Magistrate Judge Facciola, to whom Judge Hogan referred the case, specifically
identified, in detail, the issues were decided in 1999 and would not be “triable issues of fact” for the jury
and what issues would proceed to a jury at trial. The Court of Appeals discounted MJ Facciola’s
interpretation of Judge Hogan’s decision, stating that he could not overrule Judge Hogan; however, as
Ms. Martin stressed in her Brief, Reply Brief and oral argument, Judge Hogan adopted Judge Facciola’s
decision as his own, on September 16, 2005. This was not, therefore, a question of whether Ms. Martin
and/or Magistrate Facciola corrected interpreted Judge Hogan's decision; by making Magistrate
Facciola's decision his own, he confirmed that Magistrate Facciola had correctly interpreted his 1999
decision as determining, based on the undisputed facts, Harrison's conduct constituted harassment on the
basis of sex, as a matter of law and that it would not be a triable issue of fact for the jury.
Errors of Fact that Affected Rulings of Law
The Appellate Panel's unpublished March 31, 2008 Decision adopts -- and actually relies upon.as fact,
Howard's blatant, material misrepresentations of the record -- even though Ms. Martin filed two motions
for sanctions against Howard and its outside counsel for these misrepresentations in its Brief and oral
argument. See March 11, 2008 Motion for Sanctions against Howard University for its false
representations to the Court of Appeals in its Brief. On April 1, 2008, Ms. Martin filed a Motion for
Sanctions against Brian L. Schwalb, Esquire (see Exhibits) one of Howard's attorneys, and his law firm
for his false statements and misrepresentations of the record during oral argument. Howard made
numerous material false factual representations that were completely unsupported by the evidence and
contradicted by Howard's own admissions in discovery and stipulations and/or by the testimony of its
own binding witnesses.
The Court of Appeals also relied on Howard's completely unsupported statement that Harrison "stalked"
males as well as females; but Harrison was not an "equal opportunity stalker. H stalked only women.
Harrison has targeted African-American female professors across the country, since the mid-1980s, in
search of the embodiment of a fictional character, Geneva Crenshaw, in a book, And we are not Saved,
written by the renowned law professor, Prof. Derrick Bell, who is currently teaching at NYU Law
School. See Harrison's letters: first letter; second letter; January 1998 letter to another female attorney.
In 1990, Harrison threatened the life of Prof. Bell, at Harvard University, accusing Prof. Bell of
concealing the identify of the "real" Prof. Crenshaw from him. See Affidavit of Prof. Derrick Bell. This
one incident, however, does not begin to meet the definition of "stalking," since "stalking" is legally
defined by numerous acts of harassment.
Since the trial judge would not allow Prof. Bell to testify, the only evidence of Harrison's contact with
Prof. Bell came from Ms. Martin. Ms. Martin did not use the word "stalk" in describing what Prof. Bell
told her, nor did the behavior described constitute stalking. The judge allowed in only enough testimony
to inform the jury that Harrison had approached a man, then cut off Ms. Martin's testimony so that the
jury could not hear that Harrison only approached him to obtain the name of a woman or that Prof. Bell
had told her of other women that Harrison pursued to be his "wife" -- or the model for the "Geneva
Crenshaw" character.
NAWL's Amicus Brief argues that Howard’s argument is like saying that John Hinckley did not sexually
harass Jodie Foster when he stalked her because he also attempted to kill President Reagan. NAWL
argues that the fact that a sexually harassing stalker may also have committed a violent act against a man
in his lifetime does not negate the fact that he sexually harassed a woman in another setting.
The Appellate Panel Left Intact Erroneous Precedent in Title VII Retaliation Cases
Martin also presented issues regarding actionable retaliation under Title VII, but the Court of Appeals
deemed these issues moot. Since the Court determined that Howard was free to commit any retaliatory
act against Prof. Martin for being stalked, with no Title VII penalty, the lower court’s definition of acts
that constitute actionable retaliation under Title VII was irrelevant to this case; however, the Court of
Appeals’ failure to reverse the lower court on this issue leaves the lower court’s precedent intact: an
employer may leave positions unfilled, cancel vacancies and/or convert advertised positions to positions
for which an applicant is not the best qualified, even where it is done to prevent the most qualified
applicant from being hired, in retaliation for reporting sexual harassment – or any other EEO violation,
whether based on race, national origin, religion, ethnicity, age or disability.
The Appellate Panel Failed to Address Trial Court's Decision Assessing Defendants'
Litigation Costs against Plaintiffs in Employment Discrimination Cases, Filed in Good Faith
This case presents the Court with yet another precedent-setting issue. The trial court, via, Chief Judge
Hogan, ordered Ms. Martin to pay Howard University's litigation costs, without notice or opportunity to
be heard on the factors that are to be considered when assessing costs against a Title VII plaintiff. Ms.
Martin filed an Opposition to Defendant's Bill of Costs based on the law of other circuits and related
Supreme Court law.
Ms. Martin also asked the Court to define the circumstances under which Title VII plaintiffs may be
ordered to pay the litigation costs of the defendant. The National Organization of Women (NOW)
recently ran a campaign protesting the 11th Circuit imposition of costs against the plaintiff in Lilly
Ledbetter v. Goodyear, after the Supreme Court ruled against her in her sex discrimination claim. NOW
and NAWL have argued that such assessments unfairly punish women who file sex discrimination
lawsuits, in good faith, in the public interest. The Court declined to address this issue.
The issue of assessing costs was stayed during the appellate process. When the appellate process ended,
Howard University moved the Court to lift the stay and force Ms. Martin to pay its litigation costs (nearly
$10,000). "Costs" include deposition transcript costs, photocopying and other "out of pocket" costs, as
opposed to attorneys' fees, which cannot be assessed against a plaintiff unless it is a completely frivolous
suit, within the meaning of "Rule 11," meriting punishment of the plaintiff for bringing the action. The
issue of costs is currently pending before Judge Hogan, at the Trial Court level. Ms. Martin has cited
numerous cases, including controlling case law, holding that the special status of civil rights plaintiffs, as
"private attorneys general" opposing discrimination, requires that the court examine certain factors to
each case to determine whether it is just and fair to impose the defendant's costs on the plaintiff. These
factors include: 1) whether the plaintiff brought the case in good faith; 2) whether the case was a close
one or raised important legal issues; 3) the relative financial resources of the parties; 4) any misconduct
by the defendant; and 5) any misconduct by the plaintiff. See Plaintiff's Motion to Retax Costs/Vacate
Clerk's Taxation of Costs, Defendant's Opposition to Plaintiff's Motion to Retax Costs/Vacate Clerk's
Taxation of Costs against Plaintiff and Plaintiff's Reply to Defendant's Opposition to Plaintiff's Motion to
Retax Costs/Vacate Clerk's Taxation of Costs against Plaintiff.
Ironically, Howard University is, once again, betraying its own civil rights legacy by arguing for legal
precedent that punishes civil rights plaintiffs for filing civil rights suits, by burdening them with
Defendants' litigation costs if they do not prevail in their lawsuits. Courts have held that the threat of not
only losing a case, but also, the possibility of paying the defendant's litigation costs, would have a
"chilling" effect on potential civil rights plaintiffs and that this reluctance to file civil rights claims will
thwart the enforcement of civil rights.
HOWARD'S DEFENSES HAVE CONSISTED OF FRAUDS UPON THE COURT FOR ELEVEN
YEARS
In addition to Dean Bullock's perjury regarding her understanding that Harrison's harassment was
directed at women, such as Prof. Martin -- and not men, as discussed above, Dean Bullock's July 1,
1998 memo to Howard's General Counsel, claimed that she took a number of precautionary measures,
including involving Howard's campus security force in developing a plan to protect Prof. Martin and
other women at risk on campus; however, when Ms. Martin was finally permitted to depose Dean
Bullock and Howard security officers in 2002, after Howard defied numerous discovery orders and was
held in contempt for withholding discovery, Bullock admitted that she never even discussed the stalking
with the Director of Campus Security or any other security or police officer, while Prof. Martin was
teaching at Howard. Her admissions contradicted her July 1, 1999 written representations to Howard's
General Counsel and her December 1, 1997 memo to Prof. Martin, in response to her November 25,
1997 memo asking for protection from the stalking.
As discussed above, for years, Howard claimed that the junior visiting professor selected had her article
published, as of December 18, 1997, when the Appointments Committee selected her to take over the
Equal Employment Law class that Prof. Martin had been teaching at Howard for the previous two years.
In fact, this junior professor's article was not actually published until a year later, in the Winter of 1998.
Howard also claimed that Prof. Martin's article was not even completed, as of December 18, 1997;
however, once deposed, all of the members of the Appointments Committee testified that they actually
knew that Prof. Martin's article was not only completed by that date, but also accepted for publication as
of that date. Prof. Martin's article , "911: How Will Police and Fire Departments Respond to Public
Safety Needs and the Americans with Disabilities Act?" was published at the same time as was the junior
visiting professor, in the Winter of 1997.
TRIAL COURT FILINGS DETAILING FACTS AND LEGAL ARGUMENTS
The trial of this case was first delayed due to Howard University's refusal to produce discovery. In
2002, the court finally held Howard in Contempt of Court for its violation of three court orders to
produce valid discovery. The documents and deposition testimony produced as part of the discovery
process revealed that Howard could not produce evidence to dispute Ms. Martin's allegations and, in
fact, confirmed her material allegations. Ms. Martin therefore filed a Motion for Summary Judgment,
accompanied by a Statement of Undisputed Material Facts, in October of 2002. See also Martin's Reply
to Howard University's Opposition to Plaintiff's Motion for Summary Judgment, Plaintiff's Opposition to
Defendant's Motion for Summary Judgment and Plaintiff's Statement of Disputed Material Facts.
Ms. Martin moved the Court to Strike Defendant's Motion for Summary Judgment because it relied on
testimony specifically excluded from the record; however, the Magistrate Judge ignored her motion and
his own order and considered Howard's Motion for Summary Judgment relying on precluded testimony.
See Martin's Motion to Strike Defendant's Motion for Summary Judgment and Reply to Howard's
Opposition to Plaintiff's Motion to Strike. Ms. Martin waited three years for the Court to decide the
cross-motions for summary judgment. It never decided her Motion to Strike Defendant's Motion for
Summary Judgment.
After trial, but before filing the appeal, Ms. Martin 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 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.
ORIGINAL PETITION FOR SUPREME COURT REVIEW
On August 14, 2008 Ms. Martin filed her original Supreme Court Petition for Certiorari (for printing
purposes, note that the first 52 pages constitutes the Petition and the Appendix is an additional 241 pages
long). Howard filed a Brief in Opposition. Ms. Martin filed a Reply Brief and an Amicus Curiae (friend
of the Court) Brief was filed by the National Organization for Women (NOW) and the National
Association of Women Lawyers (NAWL), joined by: 1) Peace at Work; 2) The Arizona Coalition against
Domestic Violence; 3) The Iowa Coalition against Domestic Violence; 4) Survivors in Action; 5) The
Weaker Vessel; 6) After the Trauma; and 7) The California Protective Parents’ Association. Ms. Martin
extends her sincere thanks to these organizations and the people who committed themselves to the
Amicus Brief. She especially thanks Roberta Wright, Esquire, for writing the Brief and then NOW
President, Kim Gandy, for taking the lead in sponsoring and reviewing it.
The Supreme Court receives 9,000 Petitions for Certiorari (requests to review U.S. Court of Appeals
Decisions) each year. It hears less than 100 of them. There are death penalty cases, election cases,
international law cases, other employment cases and other extremely important issues before them, so it
is no reflection on the merits of Ms. Martin's case that it was not selected for review. To the contrary,
the fact that women's rights advocates and anti-violence groups support of Ms. Martin and her legal
arguments. Numerous websites, bloggers and commentators wrote in support of her efforts to provide
legal protection for stalking victims at work.
Even if Martin v. Howard University remains another wrong decision by judges setting bad precedent,
but hopefully, it will bring enough attention to the issues of stalking and workplace violence to bring
about a change the law, as well as security practices in the workplace and on campuses. It won't give
back what it took away from Ms. Martin or her family, but hopefully, it will help other women.
If the Supreme Court again declines to hear the case, however, Ms. Martin will still have to litigate the
issue of Howard's costs -- nearly $10,000 -- that the District Court, Judge Thomas Hogan, ordered Ms.
Martin to pay to Howard, as a result of her losing the case.
Howard’s legal arguments are difficult to find within the “muck and mire” of its flagrantly false
representations of the record. It consists primarily of false representations attacking her character, as it
did in its D.C. Circuit Brief. See March 11, 2008 Motion for Sanctions against Howard University for its
false representations to the Court of Appeals in its Brief. Ms. Martin's Reply focuses on the legal issues
affecting all women and stalking victims, but does address Howard's attack on her family.As the D.C.
Court of Appeals cautioned, in another sex discrimination case brought by a Howard University professor:
…[a]n unscrupulous employer who has engaged in discriminatory practices may
sometimes falsely depict a person with a legitimate complaint as a meritless troublemaker;
the effects of the employer’s wrongful conduct may them be compounded by the
undeserved ad hominen condemnation of and calumny against a plaintiff who deserves better.
Carter-Obayuwana v. Howard University, 764 A.2d 779, 793 (D.C. 2001). Howard has a pattern of
long, “contentious” litigation with its employees. See, e.g., Summers v. Howard University, WL 751316
at *4, 5 (D.D.C. 2006) (finally settled).
"[A] lie is evidence of consciousness of guilt.”
Aka v. Washington Hospital Center, 156 F.3d 1284, 1293 (D.C. Cir. 1998).
The U.S. Court of Appeals' March 31, 2008 Decision repeats the facts as stated in the District Court's
October 4, 2006 District Court Decision, which fails to disclose any facts about the stalking of Prof.
Martin at Howard Law School; however, in 1999, the District Court did reveal these facts. See Martin
v. Howard University and Alice Gresham Bullock, 1999 U.S. Dist. LEXIS 19516, 1999 WL 1295339, 81
FEP Cases 964 (BNA), 15 IER Cases 1587 (D.D.C. 1999). The facts omitted by the Appellate Panel and
the 2006 trial court decision are the very facts that led the same trial judge, Judge Thomas F. Hogan, to
conclude, in 1999, that the stalker's pursuit of Prof. Martin and other women lawyers and professors
who fit the concept of his perfect "wife," made it "clear" that the stalker's harassment of Prof. Martin
was sexual in nature or based on her sex/gender. See Martin v. Howard University and Alice Gresham
Bullock, 1999 U.S. Dist. LEXIS 19516, 1999 WL 1295339,81 FEP Cases 964 (BNA), 15 IER Cases
1587 (D.D.C. 1999). The District Court reaffirmed this conclusion in 2003 and 2005; however, in 2006,
after all evidence was submitted at trial, the trial judge surprisingly submitted the question of whether the
harassment was based on sex to the jury and declined to provide the jury with additional instruction on
the legal analysis of sexual harassment when the jury requested it.
THE BASIS FOR THE PETITION FOR REHEARING BY THE U.S. SUPREME COURT
On November 17, 2008, the Supreme Court declined to review Prof. Martin’s case; however, on
December 12, 2008, she filed a Supreme Court Rule 44 Petition for Rehearing, in light of its pending
review of Crawford v. Metropolitan Government of Nashville and Davidson County, another case
similarly alleging sexual harassment and retaliation for reporting sexual harassment. Both Ms. Crawford
and Prof. Martin lost their jobs shortly after reporting the harassment to their employers. They were
both deprived of the opportunity to prove that they lost their jobs due to retaliation for reporting the
harassment. In both Crawford and Martin, the respective Circuit Courts held that the plaintiffs did not
engage in “protected activity” because of how they reported the sexual harassment to their employers.
In 1999, the federal district court set precedent in Martin by adopting the EEOC Regulation 29 CFR
1604.11(e), holding that an employer can be held liable for the sexual harassment of an employee, by a
non-employee, if the employer knew or should have known of the harassment and failed to take
reasonable steps to end it. Martin v. Howard University and Alice Gresham Bullock, 1999 U.S. Dist.
LEXIS 19516, 1999 WL 1295339, 81 FEP Cases 964 (BNA), 15 IER Cases 1587 (D.D.C. 1999). Judge
Hogan identified the jury questions as: 1) whether Harrison’s harassment was severe and pervasive
enough to constitute a hostile work environment; and 2) whether Howard took reasonable steps to end
it. The jury agreed with Prof. Martin that Harrison’s harassment did create a “hostile work environment”
for her and that Howard did not take reasonable steps to end it; yet the verdict was for Howard. With
insufficient legal instruction from the judge, the confused jurors found that the harassment was not
based on sex – and therefore, that Prof. Martin’s complaints were not “protected activity” under Title
VII of the Civil Rights Act.
Howard repeatedly told the jury that Prof. Martin’s claim must be defeated because, after the D.C.
Metropolitan Police Department characterized Harrison as a “stalker,” she entitled her memos to the Dean
“Security Problem on Campus” rather than “Sexual Harassment.” Prof. Martin asked the judge to
instruct the jury, using the words from his own 1999 decision, that it is not necessary to use the precise
words “sexual harassment” to invoke Title VII protection. Judge Hogan flatly refused to provide that
instruction, even though several courts have recognized that stalking is one of the most egregious forms
of sexual harassment. Judge Hogan also refused to provide the jury with the D.C. Stalking Statute,
which defines “stalking” as repeated harassment. Without the proper legal framework for analyzing
harassment based on sex, jurors were confused into accepting Howard University’s argument that the
stalker’s harassment was not sexual in nature or based on sex and that her complaints did not constitute
“protected activity.” The Supreme Court’s decision in Crawford should control the outcome of Martin.
Prof. Martin filed her December 12, 2008 Petition for Rehearing, coincidentally, shortly after celebrity
Paula Abdul directed public attention to the issue of workplace stalking in an interview with Barbara
Walters. Ms. Abdul alleged that her employer, American Idol, allowed a stalker on the show -- her
workplace --for "entertainment value." A videotaped audition shows a contestant singing a song he had
written about his desire to "stalk" Ms. Abdul, with fellow Idol judge Randy Jackson laughing and
encouraging it and security doing nothing, even as the contestant approaches Paula, grinding against the
table as he sings that he would like to "Peter Falk" her. It is only because fellow judge and producer
Simon Cowell insists that security remove the contestant that he is finally stopped.
Workplace scenarios described by Prof. Martin and Ms. Abdul highlight the fact that there is no federal
statute that expressly protects stalking victims against employer retaliation for complaining about stalking
-- or that obligates employers to take reasonable steps to keep known stalkers out of the workplace.
Prof. Martin filed her case under Title VII of the Civil Rights Act of 1964, which prohibits harassment
that is “sexual in nature” or based on gender. Prof. Martin argues that: 1) since 78% of stalking victims
are women, stalking constitutes harassment on the basis of gender; 2) when the stalker uses “gender
specific” language and criteria to select his victim, the stalking is harassment based on gender; and 3)
where a stalker pursues a woman to make her his “wife,” the harassment is stalking “sexual in nature.”
Prof. Martin wants the Court to apply Title VII to protect women from workplace stalking and from
employer retaliation for reporting stalking. Prof. Martin argues that women who are doing nothing more
than “working while female” should not have to choose between their jobs and their safety.
Ms. Martin intends to continue to stand up for women who are stalked in their workplaces by working
to pass legislation that expressly prohibits employer retaliation against stalking victims.
DELAYS AND PROCEDURAL OBSTACLES
Ms. Martin understands what is it like to experience illegal retaliation, having been left to start her
career from the bottom of the ladder, after working for seventeen years to reach the height of her
career. As a single mother who lost her source of support and income at age 40, she understands that,
despite any monetary relief that may eventually be granted, the is no remedy that can restore to plaintiffs
or their families for the lost years of financial hardship and damage to the quality of life caused by illegal
discrimination.
This case demonstrates, among other things, the incredible delay that a plaintiff must endure while
awaiting justice and the loss of the quality of life and family while the plaintiff waits for remedial relief.
The case was delayed largely due to Howard University's refusal to produce discovery, which they only
produced after three court orders to do so and being held in Contempt of Court in 2002. It also
demonstrates the need for severe sanctions against parties and attorneys that base their litigation on
fraudulent defenses and withhold evidence -- for years -- that prove its claims to be false.
Defendants often have mammoth financial resources. Such was the case with Howard, as evidenced by
its retention of four consecutive outside law firms, in addition to its own Office of General Counsel, to
litigate against Ms. Martin, who has been pro se throughout most of this litigation. At trial, Howard had
four of its attorneys sitting at counsel table and additional attorneys in the audience. While Howard had
its choice of any major law firm in town, and could -- and did -- substitute lawyers as it pleased, Ms.
Martin has had to accept representation by solo practitioners who were ill equipped to challenge
Howard’s battalion of lawyers. It was very difficult for Ms. Martin to find a local attorney that would
take on Howard and all of the vast resources -- no doubt, millions of dollars -- that it has chosen to
"sink" into this particular case, against Ms. Martin, representing herself, with extremely limited
resources, throughout most of this litigation.
Ms. Martin handled her case herself (pro se), conducting all discovery herself and making all of the
arguments that withstood Howard's multiple motions to dismiss and for summary judgment over a period
of seven years; however, she did not want to put herself on the stand at trial or otherwise represent
herself at trial. She therefore retained counsel for the purpose of trial. These lawyers were
overwhelmed by Howard’s many attorneys, as well as the adverse rulings by the trial Judge. During the
trial, Ms. Martin’s first lawyer, a Howard Law graduate, actually quit, in the middle of trial, and required
Ms. Martin and her paralegal to go to his office and immediately retrieve all of her files. He reported that
“lawyers all over town” were calling him during the trial, urging him to quit. Docket #432, Pl’s Motion
for an Extension of the 25 Hour Time Limitation to Complete Trial, at 8-12 See also Appellant's March
11, 2008 Motion for Sanctions against Howard University at 10-11, for its false representations to the
Court of Appeals in its Brief.
After her first counsel quit, Ms. Martin requested that she be permitted to complete the trial herself, but
Judge Hogan coerced her into taking back the attorney who quit, although he no longer even had her files
in his possession, stating that he did not want her to put herself on the stand. Under this pressure, Ms.
Martin retained the only attorney who was willing to enter the case in the middle of trial -- an
inexperienced attorney who had no opportunity to prepare for her first trial. This replacement attorney
experienced medical problems during the trial which rendered her medically incompetent to continue as
counsel.
Ms. Martin completed the last two days of the three and a half week trial herself, making her own
closing argument, cross-examining the final witness and putting herself on the stand briefly to rebut the
testimony of this final witness. At Howard's request and over Ms. Martin's vehement objection, Judge
Hogan told the jury that Ms. Martin had "discharged" both of her lawyers and opted to represent herself.
Ms. Martin challenged this instruction on appeal, but the Appellate Panel failed to address the evidence of
record regarding the withdrawal of these two attorneys; instead, the Appellate Panel simply repeated
Judge Hogan's erroneous assertion that Ms. Martin discharged both of her lawyers.
Judge Hogan forced Ms. Martin to speak of herself in the third person and to talk to herself on the stand,
asking herself questions. On appeal, Ms. Martin argued that this requirement was improper and
prejudicial, particularly since the judge did not inform the jury that he was requiring Ms. Martin to speak
of herself in that manner. Ms. Martin cited case law recognizing that people who speak of themselves in
the third-person appear to be mentally unstable. This perception decreases the witness' credibility in the
eyes of the jury. The Court of Appeals did not address this argument.
The appeals process was extraordinarily delayed because the Court Reporter, who is a member of Judge
Hogan's staff, actually withheld transcripts from Ms. Martin that she had paid for in advance. Some of
these transcripts were completed and even docketed, but kept in Judge Hogan's chambers, rather than in
the Clerk's office for the public to access them. See Plaintiff's Motion to Integrate Plaintiff's Direct Trial
Testimony into the Official, Certified Transcript. E-mail correspondence between Howard's counsel,
the Court Reporter and Ms. Martin also reveals that, while withholding the transcripts from Ms. Martin,
the Court Reporter was corresponding with Howard's counsel, requesting Howard's assistance "to
complete the transcripts."
Although the Court of Appeals did sanction the Court Reporter, (on December 19, 2006, reducing her
fee by 20%) for late production of the transcripts, no additional inquiry was made, or sanction imposed,
regarding the evidence of collusion between Howard's attorneys and the Court Reporter regarding the
transcripts. See E-mail correspondence between Howard's counsel, the Court Reporter and Ms. Martin.
Ms. Martin filed motions in an effort to obtain some means of verifying the accuracy of the transcripts
produced, in light of the apparent collusion between the Court reporter and Howard University. In its
March 7, 2007 Order, the Court of Appeals informed the parties that no audiotape of the trial was taken
in this three and a half week trial. The Court Reporter was not required to produce her own tape
recording of the trial; accordingly, Ms. Martin was deprived of any means of correcting errors or even
deliberate corruption of the transcript.
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| Law Offices of Dawn V. Martin, LLC Martin v. Howard University |
Prof. Martin is
pictured with some
of her students at
Howard Law School
in 1998. More than
80 students
circulated petitions
and wrote letters of
protest to then Dean
Alice Gresham
Bullock protesting
Howard's refusal to
renew Prof. Martin's
teaching contract.
Click on icons below
to hear 1999 radio
shows discussing
case.
pictured with some
of her students at
Howard Law School
in 1998. More than
80 students
circulated petitions
and wrote letters of
protest to then Dean
Alice Gresham
Bullock protesting
Howard's refusal to
renew Prof. Martin's
teaching contract.
Click on icons below
to hear 1999 radio
shows discussing
case.
Ambrose Lane Show, June 23, 1999, both on
WPFW.
WPFW.
Burnie McCain Show, May 5, 1999. Howard's
own security officer, Officer Amos Sirleaf, called
in show to Prof. Martin, risking his job to do so.
own security officer, Officer Amos Sirleaf, called
in show to Prof. Martin, risking his job to do so.
A 10 minute version of the show has
already been watched by over 100, 000
viewers, on You-Tube. See
http://www.youtube.com/watch?
v=MxyzwRGYIgA&feature=channel_page
already been watched by over 100, 000
viewers, on You-Tube. See
http://www.youtube.com/watch?
v=MxyzwRGYIgA&feature=channel_page
