Martinez v. Maricopa County Community College District et al

Filing 91

ORDER: Defendants' Motion for Summary Judgment (Doc. 69 ) is granted. Plaintiff's Motion for Summary Judgment (Doc. 71 ) is denied. IT IS FURTHER ORDERED that the clerk enter judgment in favor of Defendants Maricopa County Community College District and Rufus and Debra Glasper against Plaintiff Cleopatria Martinez and that Plaintiff take nothing. The clerk shall terminate this case. Signed by Senior Judge Neil V Wake on 10/31/2017. (REK)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Cleopatria Martinez, Plaintiff, 10 11 12 13 14 No. CV-15-01759-PHX-NVW ORDER v. Maricopa County Community College District, a political subdivision of the state, and Rufus Glasper and Debra Glasper, husband and wife, 15 Defendants. 16 17 Before the Court are competing motions for summary judgment. (Doc. 69, 71.) 18 For the reasons below, the Court will grant Defendants’ motion and deny Plaintiff’s. 19 I. SUMMARY JUDGMENT STANDARD 20 A motion for summary judgment tests whether the opposing party has sufficient 21 evidence to merit a trial. Summary judgment should be granted if the evidence reveals no 22 genuine dispute about any material fact and the moving party is entitled to judgment as a 23 matter of law. Fed. R. Civ. P. 56(a). A material fact is one that might affect the outcome 24 of the suit under the governing law, and a factual dispute is genuine “if the evidence is 25 such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. 26 Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 27 28 1 It is the moving party’s burden to show there are no genuine disputes of material fact. 2 Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Upon such a showing, however, the 3 burden shifts to the non-moving party, who must then “set forth specific facts showing that 4 there is a genuine issue for trial” without simply resting on the pleadings. Anderson, 477 5 U.S. at 256. To carry this burden, the nonmoving party must do more than simply show 6 there is “some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. 7 Zenith Radio Corp., 475 U.S. 574, 586 (1986). Where the record, taken as a whole, could 8 not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for 9 trial. Id. at 587. “A court must view the evidence ‘in the light most favorable to the [non- 10 moving] party.’” Tolan v. Cotton, — U.S. —, 134 S. Ct. 1861, 1866 (2014) (quoting 11 Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970)). “A ‘judge’s function’ at summary 12 judgment is not ‘to weigh the evidence and determine the truth of the matter but to determine 13 whether there is a genuine issue for trial.’” Id. (quoting Anderson, 477 U.S. at 249). 14 II. FACTUAL BACKGROUND 15 A. 16 Plaintiff Cleopatria Martinez (“Martinez”) is a math instructor at Phoenix College, 17 a school within the Maricopa County Community College District (“District”). She has 18 over 30 years of service at the District and had reached “appointive” status, giving her a 19 right to continuous employment. (Doc. 78 at ¶ 1, 14.) Summary of Facts and Claims 20 High-level administrative officials brought termination proceedings against 21 Martinez. Following the District’s termination procedure, a Hearing Committee found, in 22 part, that Martinez had committed insubordination by refusing a direct command to 23 refund money to students whom she had charged for course materials. Nevertheless, the 24 Hearing Committee recommended against termination in light of her 30 years’ service. 25 Chancellor Rufus Glasper (“Glasper”) accepted the Hearing Committee’s finding of 26 misconduct and did not pursue termination any further, which would have required action 27 by the Governing Board. He then commenced proceedings for the lesser sanction of 28 suspension, which he imposed. Those proceedings did not require Board approval. -2- 1 Martinez brought this 42 U.S.C. § 1983 damage action against the District and 2 Glasper personally1 for violation of due process of law in depriving her of property and 3 liberty. (Doc. 14 at ¶¶ 93-109.) She has since conceded that there was no due process 4 violation for deprivation of liberty. (Doc. 71 at 13.) She also seeks declaratory relief. 5 (Doc. 14 at ¶¶ 110-17.) Both sides have moved for summary judgment on facts that are 6 materially undisputed. 7 Martinez’s exact claim is elusive. Her cause of action is 42 U.S.C § 1983. She 8 attempts to plead only a claim for deprivation of property (her employment) without the 9 federal constitutional minimums of fair and adequate procedure required by due process 10 of law in the circumstances. It may seem strange and even bizarre that the District’s rich 11 and elaborate procedures for dismissal and suspension would nevertheless fall short of 12 federal constitutional minimums of fairness. Indeed, the claim is bizarre. Martinez has 13 raised no colorable federal claim of deprivation of property without due process of law. 14 At oral argument on October 30, 2017, Martinez conceded that she pleaded no 15 state law cause of action. Nevertheless, her briefing argues that her one-year suspension 16 was not authorized under the District procedures for suspension, which do not require 17 Governing Board approval. Her one-year suspension, Martinez contends, could have 18 been done only under the District procedures for termination, which do require 19 Governing Board approval. 20 equivalent” of termination and therefore available only under the procedures for 21 termination. 22 Hearing Committee’s recommendation that she not be terminated and recommending that 23 she be suspended by the Governing Board in the termination proceedings. Whatever its 24 merit, that is a contention of the meaning of state law. She says the one-year suspension was the “economic Thus, she contends, Glasper could suspend her only by disputing the 25 26 27 28 1 Defendants pleaded a qualified immunity defense. (Doc. 15 at 20, ¶ 2.) Martinez never challenged the qualified immunity defense in her motion for summary judgment. Glasper did not move for summary judgment on that defense either. The Court decides in favor of Defendant Glasper on the merits and does not reach the qualified immunity defense. -3- 1 Even apart from Martinez’s disavowal of any state law cause of action, if she did 2 plead a state law claim, it too would be patently incorrect. The District fully complied 3 with the District’s procedures. District policies themselves sensibly distinguish between 4 dismissal and suspension and outline different procedures and authority for each. 5 Martinez received the benefit of both sets of procedures, though her actual discipline was 6 suspension only. A one-year suspension is still a suspension. Indeed, the suspension 7 expired 13 months later, and Martinez returned to work the next Fall semester. To say 8 she was terminated though she returned to work proves only that paper will bear any 9 words written upon it. There is no colorable state law claim here even if Martinez did 10 attempt to plead such a claim. 11 B. 12 Martinez did not require her students to purchase textbooks. Instead, she prepared 13 her own materials, which she called lecture notes, to distribute to the students. (Doc. 73 14 at ¶ 7.) As part of these lecture notes, she would copy problems and diagrams from 15 copyrighted sources. (Id. at ¶ 8.) She did not cite the sources when so copying. (Id.) 16 Martinez believed that the education exception of the fair use doctrine protected her use 17 of copyrighted materials. (Doc. 80 at 3, ¶ 9). Martinez’s Transgressions 18 When district officials learned of this behavior, they disapproved. The District’s 19 Vice President of Academic Services emailed Martinez on January 12, 2010. He flagged 20 the potential copyright problems with materials she had printed for the Fall 2009 and 21 Spring 2010 semesters. He sent another email on January 26, 2010, and two days later, 22 the District’s in-house counsel talked with Martinez by phone. An in-person meeting 23 with other administrators followed, as did a copyright training session with a librarian. 24 (Doc. 73 at ¶ 10.) 25 The administration restricted Martinez’s ability to use the college’s copy center, 26 requiring her to submit her requests to the department chair so he could screen the 27 materials. (Doc. 73 at ¶ 11.) Martinez did not abide by this policy, printing materials 28 without departmental approval. (Id. at ¶ 12.) This deprived the administration of its -4- 1 independent confirmation that she was not continuing to use copyrighted material. 2 Outside counsel informed the District that, in his opinion, Martinez’s Fall 2010 lecture 3 notes violated copyright law. (Id. at ¶ 13.) He said these violations could prove very 4 costly—up to $150,000 each. 5 administration further restricted Martinez’s printing and copying privileges. She was 6 now unable to use materials that she created and had to use only math-department- 7 approved materials or those available for sale at the bookstore. (Id. at ¶ 14.) (Id.) Consequently, on December 9, 2010, the 8 Many months later, in August of 2012, Martinez photocopied materials at a local 9 Staples store. (Id. at ¶ 15.) She used the materials as an alternative to a textbook. (Id.) 10 She either “sold” the packets to the students for $11 (id.) or asked to be reimbursed for 11 her expenses if the students did not copy the packets themselves (Doc. 80 at 5, ¶ 15). 12 On October 18, 2012, the President of Phoenix College required Martinez to 13 reimburse, via personal check, any affected student. (Doc. 73 at ¶ 17.) The President 14 found that Martinez had violated District policy, particularly Administrative Regulation 15 1.12, by transacting directly with students. 16 Regulation 1.12 requires the Governing Board to approve changes to the budget and fees 17 collected, which it had not done with respect to the money Martinez collected when she 18 transacted directly with students. (See id. (“[Y]ou imposed charges on the students 19 without authority to do so.”).) In the October 18 directive, the President reaffirmed her 20 earlier restrictions on Martinez’s copying privileges. 21 Regulation 6.7, she also warned Martinez that further insubordination could subject her to 22 harsher punishment, “up to and including termination.” (Id.) (Doc. 73-2, Ex. 21.) (Id.) Administrative Citing Administrative 23 Around January 9-11, 2013, the District learned that several students had not 24 received their reimbursement checks. (Doc. 73 at ¶ 17; Doc. 72 at ¶ 7.) The District 25 required Martinez to produce copies of all refund checks by January 18, 2013. (Doc. 73 26 at ¶ 17.) As of her dismissal hearing in November 2013, she still had not done so. (Doc. 27 73-4, Ex. 23 at 232:17-25.) 28 -5- C. 1 The road to that dismissal hearing began with a “Pre-Disciplinary Conference” on 2 3 4 5 6 7 8 April 3, 2013. (Doc. 73 at ¶ 19.) The stated purpose of the conference was “to ensure that the decision to be made concerning the complaints against” Martinez would be “based on complete and accurate information.” (Doc. 73-5, Ex. 26.) Phoenix College’s President and Vice President of Academic Affairs conducted the meeting. Also present were two Human Resources staff members. Martinez was entitled to have a fellow employee there as a representative, but only to observe and not to participate. (Id.) After the April 3, 2013 meeting, the President and Vice President decided to 9 10 11 12 13 14 15 16 17 18 19 20 terminate Martinez’s employment. (Doc. 73 at ¶ 20.) On August 9, 2013, the District provided Martinez with a Statement of Charges regarding termination proceedings. (Id.) The charges included violating copyright law and the District’s cash handling policy— although pointing to Administrative Regulation 1.17 rather than Regulation 1.12. (Doc. 73-5, Ex. 27.) A copy of Regulation 1.17 was attached to the Statement of Charges. Regulation 1.17 requires that there be, among other things, specific safeguards for storing cash, independent reconciliation of receipts, and management oversight of cash handling processes and personnel. (Id.) The Statement of Charges also accused Martinez, because of her failure to follow the administration’s commands barring unauthorized copying and requiring her to reimburse her students, of violating Administrative Regulations 6.7.1 and 6.7.3, which prohibit willful violations of the law or of District rules. (Id.) Martinez exercised her right to a hearing. (Doc. 80 at 6, ¶ 19.) The day-long 21 22 23 24 25 26 27 The Dismissal Hearing hearing took place on November 18, 2013. (Doc. 73 at ¶ 22.) The Hearing Committee was composed of three faculty members. (Doc. 73-5, Ex. 24 at 8.) The procedures were robust and involved a scheduling order, pre- and post-hearing briefing of arguments, a list of witnesses and exhibits, citation to supplemental authority, and more. (Doc. 73 at ¶ 22.) Martinez was represented by counsel, called witnesses, cross-examined the District’s witnesses, and offered evidence. (Id.) Among Martinez’s evidence was advice 28 -6- 1 she received from an intellectual property attorney, who provided a detailed analysis of 2 why Martinez had not violated copyright law. (Doc. 73-5, Ex. 24 at 4, ¶¶ 30-32.) 3 The Hearing Committee made its findings and recommendation on December 9, 4 2013. (Doc. 73-5, Ex. 24 at 8.) It found: (1) the expert testimony conflicted and made it 5 unclear whether Martinez violated copyright law; (2) for reasons the Committee did not 6 clearly explain, whether Martinez violated the District’s “cash handling” rules was also 7 inconclusive; and (3) Martinez “intentionally” failed to comply with the “clear directive” 8 to issue refunds and was therefore willfully insubordinate. (Doc. 73-5, Ex. 24 at 7, ¶¶ 64- 9 67.) This willful insubordination violated two portions of District regulations. 10 Administrative Regulation 6.7.1 prohibits the “[w]illful and intentional violation of any 11 . . . [District] administrative regulation that affects the employee’s ability to perform his 12 or her job.” Administrative Regulation 6.7.3 prohibits the “[w]illful and intentional 13 failure to perform job duties that have first been communicated to an employee and are 14 within the employee’s scope of employment.” 15 Ultimately, the Committee recommended against dismissing Martinez in light of her 30 16 years’ service. (Doc. 73-5, Ex. 24 at 8; Doc. 73 at ¶ 25.) Glasper did not further pursue 17 dismissal, which would have required approval of the Governing Board. (Doc. 73-5, Ex. 24 at 7, ¶¶ 68-69.) 18 D. 19 Glasper informed Martinez in a February 10, 2014 letter that he would not 20 recommend to the Governing Board that it overturn the Hearing Committee’s 21 recommendation against termination. He also provided a new Statement of Charges 22 seeking suspension and said that he had “decided to suspend [her] employment under 23 [his] sole authority as Chancellor pursuant to section [3.13]2 of the Residential Faculty 24 Policies.” (Doc. 73-6, Ex. 36 at 57 of 88.) The suspension was to begin on March 1, 25 2014, and run through May 15, 2015. Glasper said that he had confirmed with the The Suspension 26 2 27 28 The section numbering changed from 3.13 to 3.11 in the 2013-14 academic year. For simplicity, and because there were no substantive changes, the Court uses “3.13” throughout this Order. All other Residential Faculty Policy references are also to the Policies from the 2012-13 academic year. -7- 1 General Counsel, as the Residential Faculty Policies required, that the suspension did not 2 violate Martinez’s rights. “The basis for this action is the unanimous finding of an 3 independent hearing committee that you willfully violated the district policies set forth in 4 the statement of charges and that I have the authority to suspend your employment 5 without pay.” Glasper also informed Martinez that she could retire voluntarily and 6 remain on paid administrative leave until May 9, 2014. (Id.) 7 Martinez had the right to meet with the Vice Chancellor of Human Resources to 8 discuss the Statement of Charges. She canceled the day before their scheduled meeting 9 because of a medical issue. (Doc. 73 at ¶ 27.) The District postponed her suspension by 10 one month to ensure that she could meet with the Vice Chancellor. (Id.) On March 7, 11 2014, the two met, with Martinez accompanied by counsel. (Id. at ¶ 28.) Martinez’s 12 suspension was upheld and ran from April 15, 2014, until May 15, 2015. (Id. at ¶ 27.) 13 The Governing Board was not required to approve the suspension or to review it. 14 Martinez could ask the Board, in its discretion, to intervene, and she wrote numerous 15 letters to the Governing Board and appeared before it several times. (Doc. 73 at ¶¶ 30- 16 35.) 17 Martinez contends she had no meaningful hearing because she had no right under the 18 Residential Faculty Policies to appear formally before the Board, but she did appear. 19 (Doc. 80 at 12-13, ¶ 23.) The Board took no action to intervene. Again, at oral argument 20 Martinez disavowed any claim for violation of state law. She argued that her suspension was the economic equivalent of termination. 21 Martinez returned to Phoenix College in the fall of 2015, after her suspension 22 expired. (Id. at ¶ 36.) Plainly, she was not terminated. She is still in defiance of the 23 order to reimburse her students for the $11 course materials. (Id. at ¶ 37.) 24 III. DUE PROCESS OF LAW 25 A. 26 The federal due process clause does not give a substantive right to property or 27 liberty. It gives, in some circumstances, a federal right to some process before the state 28 takes away property or liberty, or process afterwards. There are two steps to the due Federal Due Process Standards -8- 1 process analysis. The first is determining whether the plaintiff has a property interest. 2 See Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 570 (1972). If so, the second is 3 determining what process is due. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 4 532, 541 (1985). The answer varies according to the circumstances of the deprivation. 5 The inquiry considers the procedures and the interest affected, “the risk of erroneous 6 deprivation of such interest” through the challenged procedure, the value of additional 7 procedure, and the government’s interest in the existing procedure. Mathews v. Eldridge, 8 424 U.S. 319, 335 (1976). 9 opportunity to be heard at a meaningful time and in a meaningful manner.” Id. at 333 10 “The fundamental requirement of due process is the (internal quotation marks omitted). 11 As an appointive—i.e., tenured-in-fact—faculty member, Martinez had a property 12 interest in her continued employment at Phoenix College, even as against a temporary 13 suspension. See Roth, 408 U.S. at 577 (citing Connell v. Higginbotham, 403 U.S. 207, 14 208 (1971)) (recognizing due process rights for teachers even without tenure when there 15 was “a clearly implied promise of continued employment”). “Temporary suspensions, 16 like terminations, are deprivations of employment that can implicate the protections of 17 due process.” Ass’n for L.A. Deputy Sheriffs v. Cty. of L.A., 648 F.3d 986, 991 (9th Cir. 18 2011). The question is what process was due. Martinez had a right not to be suspended 19 without minimally fair procedure under the due process clause. 20 After a thorough termination procedure, the Hearing Committee made a binding 21 finding that Martinez refused to comply with express directions and therefore was 22 insubordinate. That elaborate procedure richly satisfied federal constitutional standards. 23 By equal if not stronger force, Glasper’s reliance on the binding facts found under that 24 procedure was constitutionally adequate to suspend her. 25 B. 26 Two distinct sections of the Residential Faculty Policies are in play here. Policy 27 3.13 deals with the Chancellor’s power to suspend. (See Doc. 72-2 at 59-60 of 117.) 28 Under that Policy, the Chancellor must write a formal statement of charges against the The Faculty Policies Concerning Suspension and Termination -9- 1 faculty member, as Glasper did. The faculty member must be notified either in person or 2 by registered or certified mail. If the suspension is without pay, the Chancellor must first 3 seek the advice of the General Counsel. 4 Resources must consult with the faculty member regarding the rationale for the 5 suspension. The District did everything the Policy required. The state-law procedure 6 was fully satisfied. Martinez does not plead any claim for violation of Policy 3.13. Further, the Vice Chancellor of Human 7 The provision of the Residential Faculty Policies that deals with termination is 8 more elaborate. (See Doc. 72-2 at 60-62 of 117.) Under Policy 3.15, the College 9 President first writes a formal statement of charges and forwards it to the Vice Chancellor 10 of Human Resources. The Vice Chancellor then consults with the District Legal Office 11 and determines whether to inform the Chancellor that a legally sufficient case exists for 12 dismissal. The Chancellor writes to the Governing Board, with a copy sent to the faculty 13 member. 14 The Vice Chancellor’s recommendation gives notice to all parties of the intent to 15 formally recommend dismissal. It also includes as an attachment a formal statement of 16 charges that contains, as applicable, the statutes, policies, rules, or written objectives that 17 the faculty member is alleged to have violated. The statement of charges must be specific 18 enough to allow the faculty member to defend herself. 19 Within five business days the faculty member may demand a hearing by writing to 20 the Vice Chancellor. 21 Committee composed of three faculty members. 22 President of the Faculty Association selects another, and the accused faculty member 23 selects the third. The Chancellor’s and the Faculty Association President’s selections 24 must come from other colleges within the District. Only the accused may select a 25 Committee member from the college where the accused teaches. 26 This suspends dismissal. The District then forms a Hearing The Chancellor selects one, the The Hearing Committee selects a chair. (The parties can stipulate to different 27 timelines at this point.) Within twenty business days, the Chair meets with the 28 attorneys/representatives of the parties to hold a prehearing conference and exchange - 10 - 1 exhibits, witness lists, summaries of testimony. If a party does not comply with the 2 prehearing rules, the Chair can exclude any offending evidence. 3 Within ten business days the hearing commences. The faculty member may elect 4 to have the hearing in public or in executive session. “The member may attend the 5 hearing; present any testimony, evidence, or statements, oral or written, in his/her behalf; 6 and be represented by legal counsel or other representative. It is expressly understood the 7 act of testifying will not be subject to reprisal by the [District].” Faculty Policy 3.15.6. 8 Within five business days the Hearing Committee must provide the Chancellor and the 9 faculty member with a summary of evidence and binding written findings of fact and 10 conclusions of law. It must also recommend whether to dismiss the faculty member, but 11 the recommendation is not binding. 12 The Chancellor has an opportunity to meet with the Hearing Committee and 13 clarify any questions about its findings or conclusions. He may then either adopt the 14 Committee’s recommendation regarding dismissal or make his own and forward it, along 15 with the Committee’s findings and recommendation, to the Governing Board. 16 Again, in the earlier proceeding concerning dismissal, the District procedures were 17 fully complied with. Glasper adopted the Committee’s finding that Martinez had violated 18 District regulations and its recommendation against dismissal, despite the violation. 1. 19 Neither Faculty Policy Requires Board Action for Suspension 20 Though it is not a federal due process claim, Martinez argues that her suspension 21 was the economic equivalent of termination. Because she was effectively terminated, she 22 says, under Policy 3.15 Glasper could not suspend her without recommendation to and 23 approval of the Governing Board. That part of Martinez’s discussion is odd because at 24 oral argument she conceded that she was making no claim of violation of the Faculty 25 Policy. 26 In any event, Martinez misstates the text and the meaning of Policy 3.15. 27 Martinez asserts that Policy 3.15 commands the Chancellor to (1) accept the Hearing 28 Committee’s recommendations or (2) recommend his own course to the Governing - 11 - 1 Board, which can be “a recommendation for a lesser discipline.” (Doc. 71 at 2.) But the 2 recommendation to the Board is required only if the Chancellor seeks termination despite 3 the Committee’s recommendation not to terminate. To the extent she says the Chancellor 4 is ever required to recommend a lesser discipline or get Board approval for it, Martinez 5 manufactures her assertion out of whole cloth. It has no textual basis and it contradicts 6 the language of the Faculty Policy. Policy 3.15.8 states, “The Chancellor may adopt the 7 Hearing Committee’s recommendation regarding dismissal or make his/her own 8 recommendation and forward the recommendation . . . to the Governing Board.” 9 (Emphasis added.) The Policy speaks to recommendations “regarding dismissal.” Here, 10 the Committee recommended against dismissal despite its finding of Martinez’s 11 misconduct. 12 Board but did not. The Policy does not even hint that the Chancellor must make a 13 recommendation on lesser discipline within the 3.15 dismissal proceeding. The Chancellor could have nonetheless recommended dismissal to the 14 Policy 3.13 speaks directly to the Chancellor’s authority to impose discipline less 15 than dismissal, which lies entirely within his authority subject to the procedures stated 16 therein and the Board’s discretion to intervene later and overturn his action. The Board 17 need not review the Chancellor’s imposition of the discipline of suspension. Neither 3.13 18 nor 3.15 require Board action on discipline less than dismissal. 19 Under Martinez’s interpretation, if a faculty member received the full procedural 20 protections of Policy 3.15 for a possible dismissal, the Chancellor would have to go to the 21 Governing Board to suspend her or for any lesser discipline at all. Yet if the Chancellor 22 invoked Policy 3.13 from the start, going to the Governing Board would not be required. 23 This result has no basis in the text, is contrary to the text, and is absurd. 24 In addition to the full process of Policy 3.13 for suspension, Martinez received the 25 surplusage of process that 3.15 affords for the predicate finding of willful 26 insubordination. 27 Administrative Regulation 6.7. (Doc. 73-5, Ex. 24 at 7, ¶¶ 68-69.) It further noted that 28 violating Administrative Regulation 6.7 “constitutes grounds for disciplinary action up to The Hearing Committee found that Martinez had violated - 12 - 1 . . . and including termination.” (Id. at 8, ¶ 71.) When deciding to suspend Martinez, 2 Glasper was perfectly within his authority to incorporate the Committee’s binding 3 finding, made under the processes of 3.15, that she had violated Administrative 4 Regulation 6.7. 5 Moreover, Policy 3.15.8 encourages the Chancellor to meet with Committee 6 members after the termination hearing: “After receiving the Hearing Committee’s 7 summary of evidence, findings of fact, conclusions of law, and final recommendation in 8 regard to dismissal, the Chancellor, may meet with the Hearing Committee to clarify any 9 questions he/she may have.” Glasper did just that and testified without contradiction that 10 he spoke privately with the Committee members to find out more about their 11 recommendation. (Doc. 73 at ¶ 25.) The Committee members told him that termination 12 was too harsh but that a different disciplinary action, such as unpaid suspension, would 13 be appropriate. (Doc. 73-6, Ex. 35 at ¶ 7.) (This is not inadmissible hearsay because the 14 statements are the speakers’ own advice/recommendations to Glasper from their own 15 present state of mind. 16 evidence. It is immaterial that Glasper did not include it in the suspension letter. 17 2. See Fed. R. Evid. 803(3).) Martinez does not controvert this Glasper Did Not Include a New Charge in the Suspension Letter 18 Martinez incorrectly asserts that Glasper’s February 10 letter brought up a new 19 “charge” under Administrative Regulation 1.12, which requires the Governing Board to 20 approve changes to the budget and fees charged. Glasper’s letter said, in the context of 21 going over the facts of the case, “Phoenix College determined that your course materials 22 charge was not included in the adopted budget or pre-approved by the Governing Board.” 23 (Doc. 73-6, Ex. 36.) Glasper was explaining why the District came to believe that 24 Martinez had violated the cash handling policy and how the President had described it in 25 the October 18, 2012 corrective action notice. He was not laying out a new charge 26 against her, nor did he use it as a new basis for suspending her, which he made clear was 27 the Hearing Committee’s finding that Martinez violated Administrative Regulation 6.7. 28 (See id. (“[T]his letter will serve as a statement of charges that you are in violation of - 13 - 1 Administrative Regulation 6.7.1 and Administrative Regulation 6.7.3.”).) For that 2 reason, it is less than honest for Martinez to say she had not previously encountered 3 Administrative Regulation 1.12. (See Doc. 73-2, Ex. 21 at 245 of 266 (October 18, 2012 4 corrective action notice to Martinez) (“This transaction is a violation of . . . [the 5 District’s] cash handling rules as detailed in Administrative Regulation 1.12.”).) 6 In addition, Martinez was charged in the termination proceedings with violating 7 Administrative Regulation 1.17, which was another basis for finding that she had 8 improperly transacted with students. Regulation 1.17 requires management oversight of 9 cash handling processes and personnel; Regulation 1.12 requires Governing Board 10 oversight of the budget and of fees charged. Martinez points to no meaningful distinction 11 between the two as applied to her transactions with her students. 12 3. Martinez Received Ample Process 13 Because Martinez admittedly raises no state law claims, this action turns solely on 14 whether she received minimally adequate due process. As a matter of federal law, the 15 procedures of Policies 3.13 and 3.15 provided Martinez with abundant due process for 16 termination or suspension. 17 Martinez undoubtedly has a property interest as against suspension of her 18 employment sufficient to require some process before she is deprived of it. But that 19 interest against suspension was not the legal or economic equivalent of dismissal. The 20 rich processes Martinez received, including notice and opportunity to be heard, clearly 21 met federal due process requirements. The facts of her insubordination are undisputed. 22 Martinez says she regrets her action, not that she denies it. The District has an interest in 23 maintaining its existing process. Martinez does not identify any additional procedure she 24 could be due under federal procedural law. 25 The District also has a strong interest in sanctioning insubordinate employees, 26 particularly when it sees a pattern after warnings. Martinez’s insubordination continues 27 to this day. It is does not matter how many similar punishments have been necessary in 28 the past or whether this is the first time it has been necessary. - 14 - 1 Perhaps Martinez also demands an opportunity to argue to the decision-maker that 2 a lesser sanction than suspension would be appropriate for her undisputed 3 insubordination. She had that opportunity and availed herself of it before the Board. 4 4. Glasper Was Impartial for Due Process Purposes 5 Though it was not pleaded or otherwise properly before the Court, Martinez also 6 contends in her Motion for Summary Judgment that Glasper unconstitutionally occupied 7 both a partisan and a judicial role in her case. Failure to plead this claim bars it. See 8 Wasco Prods. Inc. v. Southwall Tech, Inc., 435 F.3d 989, 992 (9th Cir. 2006) (quoting 9 Fleming v. Lind-Waldock & Co., 922 F.2d 20, 24 (1st Cir. 1990)) (“[T]he necessary 10 factual averments are required with respect to each material element of the underlying 11 legal theory. . . . Simply put, summary judgment is not a procedural second chance to 12 flesh out inadequate pleadings.”). 13 Reply Brief can point only to a blanket assertion in the Complaint that she had a “right to 14 due process free of bias.” (Doc. 88 at 7-8.) That bare conclusion unsupported by any 15 allegation that would make it plausible falls short of federal pleading requirements. See 16 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). It was not enough to “put 17 Defendants on notice” (Doc. 88 at 8) of her bias theory. Beyond recounting Glasper’s actions, Martinez’s 18 In any event, the bias theory holds no water. It appears Martinez contends that 19 because Glasper (indirectly) initiated the discipline that the Hearing Committee reviewed 20 and found factually correct, Glasper was intrinsically biased in any further action 21 concerning that discipline. That would have disqualified Glasper from recommending 22 further action in the dismissal proceeding too. Martinez argues, “A situation in which an 23 official occupies two practically and seriously inconsistent positions, one partisan and the 24 other judicial, necessarily involves a lack of due process.” (Doc. 71 at 13.) Yet, for the 25 reasons discussed above, there is nothing inconsistent about how Glasper behaved. 26 District policy, embodied in Policies 3.15 and 3.13, allowed Glasper both (1) to accept 27 the Hearing Committee’s recommendation not to fire Martinez and (2) to suspend her 28 based on the same Committee findings. He accepted the Committee’s recommendation - 15 - 1 on termination and also accepted its finding of misconduct, on which Martinez had 2 received abundantly sufficient process. 3 There is no evidence or even specific allegation of actual bias by Glasper. 4 Similarly, Glasper had no occasion to present evidence of lack of bias. That is not 5 surprising because no such claim was pleaded or subject to discovery. Martinez may not 6 ambush Glasper now on that claim raised first in summary judgment briefing. 7 In the absence of actual evidence of bias, Martinez appears to argue that a 8 personnel supervisor is disqualified from making a supervisory and disciplinary decision 9 whenever he was involved earlier in the personnel matter. It is irrational to say that 10 Glasper’s acceptance of the Committee’s prior finding of misconduct shows Glasper was 11 biased in imposing lesser sanctions for that very misconduct, which was consistent with 12 the Hearing Committee’s recommendation against dismissal. 13 The cases that Martinez cites are inapposite. Walker v. City of Berkeley, 952 F.2d 14 182 (9th Cir. 1991), involved a city attorney who was litigating against the employee in 15 federal court and who was the decision-maker in the employee’s administrative post- 16 termination hearing. Id. at 184. Here, the District’s counsel did not decide to suspend 17 Martinez. Glasper did. Counsel was not involved with the Hearing Committee until after 18 its proceedings had ended. Nor is this case like Ward v. Village of Monroeville, Ohio, 19 409 U.S. 57 (1972), in which the fines that came in from the mayor’s traffic court 20 amounted to almost half of the village’s revenue. 21 explained that this situation diminished the mayor’s impartiality and might tempt “the 22 average man as a judge to forget the burden of proof.” Id. at 59-60 (quoting Tumey v. 23 Ohio, 273 U.S. 510, 532 (1927)). Martinez’s challenge of bias is belated, factually 24 groundless, and legally erroneous. Id. at 58. The Supreme Court 25 C. 26 Martinez seeks declaratory relief that would invalidate the copying restrictions the 27 District has placed on her. The Declaratory Judgment Act provides that the federal courts 28 “may declare the rights and other legal relations of any interested party seeking such Declaratory Relief - 16 - 1 declaration.” 28 U.S.C. § 2201(a). “Declaratory relief is available at the discretion of the 2 district court.” Chesebrough-Pond’s, Inc. v. Faberge, Inc., 666 F.2d 393, 398 (9th Cir. 3 1982). 4 Granting declaratory relief in this case would be unwise because it would require 5 wading into a matter, whether Martinez violated copyright law, not before the Court. 6 Martinez has no right to push the boundaries of copyright infringement in her employer’s 7 business. The District instructed her not to, as caution allows it to do. It does not matter 8 that the Hearing Committee found that the District “failed to carry its burden of proof 9 regarding Martinez’s . . . alleged violations of U.S. Copyright Law and fair use 10 guidelines.” (Doc. 79 at 4-5.) The Committee so found because the two copyright 11 experts disagreed, and it was “inconclusive” whether Martinez “intentionally and/or 12 inadvertently violated federal copyright law.” (Doc. 72-3 at 109 of 125, ¶ 64.) 13 The Court need not decide whether Martinez actually violated copyright law. 14 What matters is the District had a good-faith basis for adopting a prophylactic order. 15 Martinez was insubordinate in refusing that order to desist or to obtain prior approval of 16 content before copying course materials. The school decided to act cautiously and to 17 institute protocols to avoid potential legal battles. Martinez ignored those protocols when 18 they were implemented. 19 complying, and she “never claimed that she did not understand the instructions or that the 20 instructions were beyond the scope of [the District’s] authority.” (Doc. 73-5, Ex. 24 at 7, 21 ¶ 67.) Martinez has no right to force the District into a copyright lawsuit. The District is 22 not required to win that lawsuit. Indeed, at her hearing, Martinez expressed regret for not 23 It would be an abuse of discretion to adjudicate any copyright matter, and in any 24 event this Court exercises its discretion not to do so. There is not even a case or 25 controversy to support such a declaration.3 26 3 27 28 Martinez’s prior litigation appears to have sought adjudication on the declaratory judgment issue and was dismissed with prejudice. See Martinez v. Maricopa Cty. Comm. Coll. Dist., et al., No. 2:12-cv-00702-DGC. Res judicata would normally apply, but Defendants did not make anything other than a cursory, blanket claim of res judicata in - 17 - 1 Martinez was fully and richly accorded fair, adequate, impartial procedure in the 2 District’s decision to suspend her for her undisputed insubordination and refusal to follow 3 directions. Martinez does not present even a colorable argument of violation of due 4 process of law. 5 6 7 8 IT IS THEREFORE ORDERED that Defendants’ Motion for Summary Judgment (Doc. 69) is granted. IT IS FURTHER ORDERED that Plaintiff’s Motion for Summary Judgment (Doc. 71) is denied. 9 IT IS FURTHER ORDERED that the clerk enter judgment in favor of Defendants 10 Maricopa County Community College District and Rufus and Debra Glasper against 11 Plaintiff Cleopatria Martinez and that Plaintiff take nothing. 12 The clerk shall terminate this case. 13 Dated this 31st day of October, 2017. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 their Answer without pointing to a prior case (Doc. 15 at 21, ¶ 4), and they did not develop an argument until their Reply on summary judgment (Doc. 87 at 7-9). The Court thus does not decide the merits of this defense. - 18 -

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