United States District Court, D. Arizona
V. WAKE SENIOR UNITED STATES DISTRICT JUDGE.
the Court are competing motions for summary judgment. (Doc.
69, 71.) For the reasons below, the Court will grant
Defendants' motion and deny Plaintiff's.
SUMMARY JUDGMENT STANDARD
motion for summary judgment tests whether the opposing party
has sufficient evidence to merit a trial. Summary judgment
should be granted if the evidence reveals no genuine dispute
about any material fact and the moving party is entitled to
judgment as a matter of law. Fed.R.Civ.P. 56(a). A material
fact is one that might affect the outcome of the suit under
the governing law, and a factual dispute is genuine “if
the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
the moving party's burden to show there are no genuine
disputes of material fact. Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986). Upon such a showing, however, the
burden shifts to the non-moving party, who must then
“set forth specific facts showing that there is a
genuine issue for trial” without simply resting on the
pleadings. Anderson, 477 U.S. at 256. To carry this
burden, the nonmoving party must do more than simply show
there is “some metaphysical doubt as to the material
facts.” Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986). Where the record, taken
as a whole, could not lead a rational trier of fact to find
for the nonmoving party, there is no genuine issue for trial.
Id. at 587. “A court must view the evidence
‘in the light most favorable to the [non-moving]
party.'” Tolan v. Cotton, ___ U.S. ___,
134 S.Ct. 1861, 1866 (2014) (quoting Adickes v. S.H.
Kress & Co., 398 U.S. 144, 157 (1970)). “A
‘judge's function' at summary judgment is not
‘to weigh the evidence and determine the truth of the
matter but to determine whether there is a genuine issue for
trial.'” Id. (quoting Anderson,
477 U.S. at 249).
Summary of Facts and Claims
Cleopatria Martinez (“Martinez”) is a math
instructor at Phoenix College, a school within the Maricopa
County Community College District (“District”).
She has over 30 years of service at the District and had
reached “appointive” status, giving her a right
to continuous employment. (Doc. 78 at ¶ 1, 14.)
administrative officials brought termination proceedings
against Martinez. Following the District's termination
procedure, a Hearing Committee found, in part, that Martinez
had committed insubordination by refusing a direct command to
refund money to students whom she had charged for course
materials. Nevertheless, the Hearing Committee recommended
against termination in light of her 30 years' service.
Chancellor Rufus Glasper (“Glasper”) accepted the
Hearing Committee's finding of misconduct and did not
pursue termination any further, which would have required
action by the Governing Board. He then commenced proceedings
for the lesser sanction of suspension, which he imposed.
Those proceedings did not require Board approval.
brought this 42 U.S.C. § 1983 damage action against the
District and Glasper personally for violation of due process of
law in depriving her of property and liberty. (Doc. 14 at
¶¶ 93-109.) She has since conceded that there was
no due process violation for deprivation of liberty. (Doc. 71
at 13.) She also seeks declaratory relief. (Doc. 14 at
¶¶ 110-17.) Both sides have moved for summary
judgment on facts that are materially undisputed.
exact claim is elusive. Her cause of action is 42 U.S.C
§ 1983. She attempts to plead only a claim for
deprivation of property (her employment) without the federal
constitutional minimums of fair and adequate procedure
required by due process of law in the circumstances. It may
seem strange and even bizarre that the District's rich
and elaborate procedures for dismissal and suspension would
nevertheless fall short of federal constitutional minimums of
fairness. Indeed, the claim is bizarre. Martinez has raised
no colorable federal claim of deprivation of property without
due process of law.
argument on October 30, 2017, Martinez conceded that she
pleaded no state law cause of action. Nevertheless, her
briefing argues that her one-year suspension was not
authorized under the District procedures for suspension,
which do not require Governing Board approval. Her one-year
suspension, Martinez contends, could have been done only
under the District procedures for termination, which
do require Governing Board approval. She says the
one-year suspension was the “economic equivalent”
of termination and therefore available only under the
procedures for termination. Thus, she contends, Glasper could
suspend her only by disputing the Hearing Committee's
recommendation that she not be terminated and recommending
that she be suspended by the Governing Board in the
termination proceedings. Whatever its merit, that is a
contention of the meaning of state law.
apart from Martinez's disavowal of any state law cause of
action, if she did plead a state law claim, it too would be
patently incorrect. The District fully complied with the
District's procedures. District policies themselves
sensibly distinguish between dismissal and suspension and
outline different procedures and authority for each. Martinez
received the benefit of both sets of procedures, though her
actual discipline was suspension only. A one-year suspension
is still a suspension. Indeed, the suspension expired 13
months later, and Martinez returned to work the next Fall
semester. To say she was terminated though she returned to
work proves only that paper will bear any words written upon
it. There is no colorable state law claim here even if
Martinez did attempt to plead such a claim.
did not require her students to purchase textbooks. Instead,
she prepared her own materials, which she called lecture
notes, to distribute to the students. (Doc. 73 at ¶ 7.)
As part of these lecture notes, she would copy problems and
diagrams from copyrighted sources. (Id. at ¶
8.) She did not cite the sources when so copying.
(Id.) Martinez believed that the education exception
of the fair use doctrine protected her use of copyrighted
materials. (Doc. 80 at 3, ¶ 9).
district officials learned of this behavior, they
disapproved. The District's Vice President of Academic
Services emailed Martinez on January 12, 2010. He flagged the
potential copyright problems with materials she had printed
for the Fall 2009 and Spring 2010 semesters. He sent another
email on January 26, 2010, and two days later, the
District's in-house counsel talked with Martinez by
phone. An in-person meeting with other administrators
followed, as did a copyright training session with a
librarian. (Doc. 73 at ¶ 10.)
administration restricted Martinez's ability to use the
college's copy center, requiring her to submit her
requests to the department chair so he could screen the
materials. (Doc. 73 at ¶ 11.) Martinez did not abide by
this policy, printing materials without departmental
approval. (Id. at ¶ 12.) This deprived the
administration of its independent confirmation that she was
not continuing to use copyrighted material. Outside counsel
informed the District that, in his opinion, Martinez's
Fall 2010 lecture notes violated copyright law. (Id.
at ¶ 13.) He said these violations could prove very
costly-up to $150, 000 each. (Id.) Consequently, on
December 9, 2010, the administration further restricted
Martinez's printing and copying privileges. She was now
unable to use materials that she created and had to use only
math-department-approved materials or those available for
sale at the bookstore. (Id. at ¶ 14.)
months later, in August of 2012, Martinez photocopied
materials at a local Staples store. (Id. at ¶
15.) She used the materials as an alternative to a textbook.
(Id.) She either “sold” the packets to
the students for $11 (id.) or asked to be reimbursed
for her expenses if the students did not copy the packets
themselves (Doc. 80 at 5, ¶ 15).
October 18, 2012, the President of Phoenix College required
Martinez to reimburse, via personal check, any affected
student. (Doc. 73 at ¶ 17.) The President found that
Martinez had violated District policy, particularly
Administrative Regulation 1.12, by transacting directly with
students. (Doc. 73-2, Ex. 21.) Administrative Regulation 1.12
requires the Governing Board to approve changes to the budget
and fees collected, which it had not done with respect to the
money Martinez collected when she transacted directly with
students. (See Id. (“[Y]ou imposed charges on
the students without authority to do so.”).) In the
October 18 directive, the President reaffirmed her earlier
restrictions on Martinez's copying privileges.
(Id.) Citing Administrative Regulation 6.7, she also
warned Martinez that further insubordination could subject
her to harsher punishment, “up to and including
January 9-11, 2013, the District learned that several
students had not received their reimbursement checks. (Doc.
73 at ¶ 17; Doc. 72 at ¶ 7.) The District required
Martinez to produce copies of all refund checks by January
18, 2013. (Doc. 73 at ¶ 17.) As of her dismissal hearing
in November 2013, she still had not done so. (Doc. 73-4, Ex.
23 at 232:17-25.)
The Dismissal Hearing
road to that dismissal hearing began with a
“Pre-Disciplinary Conference” on 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.)
the April 3, 2013 meeting, the President and Vice President
decided to 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.)
exercised her right to a hearing. (Doc. 80 at 6, ¶ 19.)
The day-long 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 she received ...