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Edmundo P. Robaina (No. 018125) 

Thomas T. Griffin (No. 022475) 

Ashley A. Marton (No. 029442) 

ROBAINA & KRESIN PLLC

5343 North 16th Street, Suite 200 

Phoenix, Arizona 85016 

Telephone: (602) 682-6450 

Facsimile: (602) 682-6455 

epr@robainalaw.com 

ttg@robainalaw.com 

aam@robainalaw.com 

Attorneys for Plaintiff Cleopatria Martinez 

UNITED STATES DISTRICT COURT 

DISTRICT OF ARIZONA 

Cleopatria Martinez, 

 Plaintiff, 

vs. 

Maricopa County Community College 

District, et al., 

 Defendants. 

No. CV 15-01759 NVW 

PLAINTIFF’S MOTION FOR 

SUMMARY JUDGMENT

(Oral Argument Requested) 

 Pursuant to Fed.R.Civ.P. 56, Plaintiff Cleopatria Martinez (“Martinez”) hereby 

files her motion for summary judgment against Defendants Maricopa County 

Community College District (“MCCCD”) and Rufus Glasper (“Glasper”). Martinez 

respectfully requests that the Court find as a matter of law that Defendants violated 

Martinez’s Fourteenth Amendment due process rights and are liable to Martinez 

pursuant to 42 U.S.C. § 1983 for compensatory damages. 

MEMORANDUM OF POINTS AND AUTHORITIES 

I. INTRODUCTION 

In August of 2013, Glasper, who was MCCCD’s Chancellor, sent Martinez, a 

mathematics professor, a notice of intent to dismiss her from her employment pursuant 

to MCCCD policies regarding dismissal of faculty. Martinez, who, pursuant to 

MCCCD policies, could not be disciplined without just cause, requested a hearing on 

the matter. 

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After an evidentiary hearing, the Hearing Committee, whose findings of fact and 

conclusions of law were binding on the parties, recommended to the final 

decisionmaker, MCCCD’s Governing Board, that Martinez be retained. Under 

MCCCD’s policies, Glasper had the option of accepting the Hearing Committee’s 

recommendation or making his own recommendation to the Governing Board, which 

could have been a recommendation for a lesser discipline. 

Glasper accepted the Board’s recommendation not to dismiss Martinez, and did 

not recommend a lesser discipline to the Governing Board. Instead, relying on a distinct 

section of the Residential Faculty Policies regarding suspensions, and also relying, in 

part, on a new allegation, he unilaterally suspended Martinez without pay or benefits for 

what amounted to sixteen months. In doing so, Glasper violated Martinez’s due process 

rights. As a result, Martinez is entitled to compensatory damages. 

II. FACTUAL BACKGROUND 

A. Martinez’s Employment with MCCCD, and the Notice of Intent to 

Dismiss 

Martinez began her employment as a full-time mathematics professor with 

MCCCD1

 in 1985, and has taught at MCCCD’s Phoenix College campus since 1995. 

[Plaintiff’s Statement of Facts (“PSOF”) ¶ 1]. On August 9, 2013, Glasper, who, at 

relevant times, was MCCCD’s Chancellor,2

 issued Martinez a notice of intent to dismiss 

Martinez from her employment. [PSOF ¶ 3]. In the notice, Glasper wrote that Interim 

Vice Chancellor for Human Resources James Bowers had reviewed the alleged charges 

against Martinez, in consultation with the MCCCD Legal Office, and recommended to 

Glasper that there existed prima facie cause for Martinez’s dismissal. [PSOF ¶ 5]. 

Glasper further wrote that he concurred with the Bower’s recommendation. [PSOF ¶ 6].

Included with the notice was a “Statement of Charges,” in which it was alleged 

 

1

 MCCCD is a political subdivision of the state of Arizona. [PSOF ¶ 2]. 

2

 Glasper was MCCCD’s chancellor from 2003 until the end of February 2016. [PSOF 

¶ 4]. 

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that Martinez had engaged in the following: 3 

 Violation of Administrative Regulation 6.7.1 – ‘Willful and 

Intentional violation of any state or federal law, applicable 

ordinance, MCCCD Governing Board policy, or MCCCD 

administrative regulation that affects the employee’s ability to 

perform his or her job,’ specifically: 

o Violation of MCCCD’s cash handling rules as covered by 

MCCCD Administrative Regulations 1.17. 

 Violation of Residential Faculty Policy Manual 3.2.4 – ‘A Faculty 

member shall not have any financial interest in or receive 

compensation from the sale of any unpublished instructional 

materials required or suggested for a class that the Faculty member 

teaches.’ 

 Violation of U.S. Copyright Law and fair use guidelines, and 

MCCCD Administrative Regulations 3.2.4 and 3.2.5 regarding 

copyright regulations: 

3.2.4 Employees are prohibited from copying materials not 

specifically allowed by the (1) copyright Law, (2) fair use 

guidelines, (3) Licenses or contractual agreements, or (4) 

other permission. 

3.2.5 The Governing Board disapproves of unauthorized 

duplication in any form. Employees who willfully disregard 

this Board policy and/or the aforementioned copyright 

guidelines do so at their own risk and assume all liability for 

their actions. 

 Violation of Administrative Regulation 6.7.3 – ‘Willful and 

intentional failure to perform job duties that have first been 

communicated to an employee and are within the employee’s scope 

of employment,’ specifically, repeated failure to follow instructions 

regarding printing/copying of unauthorized materials, failure to use 

only approved course materials, unauthorized copying and sale of 

course materials, failure to reimburse students for the materials 

your wrongfully charged them for, and failure to 

 

3

 The allegations in the August 9, 2013 Statement of Charges are taken verbatim from a 

March 20, 2013 Notice of Pre-Disciplinary Conference, which includes copies of the 

specific policies Martinez is alleged to have violated. [PSOF ¶ 8].

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meet the deadline to provide copies of any reimbursement checks 

to students. 

Brief Timeline: 

 January 2010 – College Vice Presidents Ronnie Elliott, Paul 

DeRose and Cassandra Kakar; along with Maggie McConnell; 

Assistant General Counsel, reviewed the requirements of AR 3.2 

with you at length. 

 April 2, 2010 – Anna Solley, Phoenix College President, notified 

you that your copying privileges at the Phoenix College IKON 

Copy Center were suspended. 

 Spring 2010 – An Administrative Evaluation was initiated based on 

Mr. Joe Sueyoshi's complaint. By agreement, the Evaluation Team 

did not undertake its task until the fall semester. The findings and 

recommendations were submitted to Dr. Solley on November 17, 

2010. The overall findings included: 

o Copyright and plagiarism: Dr. Martinez was notified in 

writing and in meetings of MCCCD's and Phoenix College's 

concerns regarding her course materials violating copyright, 

fair use, and plagiarism laws. 

o Insubordination: Dr. Martinez failed to follow Dr. Solley's 

and MCCCD's Legal Counsel's directives - specifically, she 

repeatedly requested copies, copied and printed 

unauthorized materials. 

 December 9, 2010 – Dr. Solley administered an Initial Corrective 

Action to you for insubordination and failure to follow instructions 

regarding printing or copying of unauthorized materials. 

 August 21-23, 2012 – You told your MAT 091 and MAT 151 

students not to buy the approved text that you listed on the 

syllabus. Instead, you made copies of a colleague's materials and 

sold them to your students for $11 each. 

 October 18, 2012 – A Second Corrective Action for 

insubordination and unauthorized copying and sale of course 

materials was administered to you by Dr. Solley. Included in the 

corrective action was the following directive: ‘Because you 

imposed charges on your students without authority to do so, you 

have the responsibility to reimburse the students from your own 

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funds. You are hereby directed to do so by personal check, 

beginning immediately and continuing until all students who paid 

you are reimbursed.’ 

 January 11, 2013 – Upon discovering that the students who bought 

your unauthorized course materials had yet to be reimbursed, 

Casandra Kakar directed you, via email, to provide her by January 

18, 2013, with front and back copies of all cashed personal 

reimbursement checks to your students. 

 January 18, 2013 – You failed to provide Dr. Kakar with copies of 

any reimbursement checks and neglected to contact her regarding 

the money you still owe the students. 

 February 21, 2013 – A student turned in the MAT091 materials 

which you left in room B210. Timothy Bryan, Mathematics 

Faculty, has previously told you that you do not have permission to 

use his materials again. 

[PSOF ¶ 7]. 

B. Pertinent Residential Faculty Policies Indicate Martinez’s Property 

Interest in Her Employment and the Procedures for Suspension and 

Dismissal 

At the time Glasper sent Martinez the notice of intent to dismiss, Martinez’s 

employment relationship with MCCCD was governed by the 2012-2013 Residential 

Faculty Policies (the “RFP”), which indicate the rights of faculty members with respect 

to various employment matters. [PSOF ¶ 9]. The RFP was “ratified” by, among others, 

Glasper and the MCCCD Governing Board.4

 [PSOF ¶ 10]. 

 Pursuant to RFP §§ 1.2. and 3.18.3.4., “Appointive” status refers to the 

employment status of a faculty member attained at the beginning of his/her sixth 

consecutive year. [PSOF ¶ 13]. Appointive faculty members have continuous rights to 

employment.5

 [PSOF ¶ 14]. 

 

4

 Both the 2012-2013 RFP and the 2013-2014 Residential Faculty Policies (the “2013-

2014 RFP”) are relevant in this case. [PSOF ¶ 11]. The 2013-2014 RFP was approved 

by the Governing Board on September 24, 2013. [PSOF ¶ 12]. 

5

 At the time she received the notice of intent to dismiss, and at the time of her 

suspension, Martinez had appointive statues. [PSOF ¶ 15]. 

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Pursuant to RFP § 3.11.2: “No faculty member shall be disciplined, reprimanded, 

suspended, or reduced in assignment or compensation without just cause.”6

 [PSOF ¶ 

16]. The term “disciplined” in this context includes terminations and suspensions. 

[PSOF ¶ 18]. 

Regarding the suspension of a faculty member, RFP §3.13.1. states, in pertinent 

part: “Upon a written statement of charges formulated by the Chancellor, charging a 

Faculty member of the MCCCD, the Chancellor, or his/her designee, may immediately 

suspend the Faculty member and give notice of the suspension...” [PSOF ¶ 19]. 

Pursuant to RFP § 3.13.3.: 

Any Faculty member who has been suspended pursuant to this Section 

will normally be paid his/her regular salary during the period of 

suspension. A suspension without pay will occur only upon the advice of 

General Counsel. If payment is to be withheld, the Vice Chancellor of 

Human Resources will first consult and advise the member...

[PSOF ¶ 20]. 

 Regarding faculty member dismissal, RFP § 3.15. provides a detailed procedure 

that includes, in pertinent part, the right of a faculty member to receive a “written 

statement of charges” which sets forth “the statutes, policies, rules, or written objectives 

of the College that the Faculty member is alleged to have violated” with “such 

specificity that the Faculty member will be able to prepare a defense based on the 

statement” (RFP §§ 3.15.1. and 3.15.2.); the right to request a hearing “which shall 

suspend the dismissal procedure, pending the completion of the hearing.” (RFP § 

3.15.3); the right to have a Hearing Committee constituted to conduct a hearing 

regarding the allegations against the faculty member (RFP § 3.15.4); and the right to 

attend the hearing, present testimony, evidence, or statements, oral or written, in his/her 

behalf, and be represented by legal counsel or other representative (RFP § 3.15.6). 

[PSOF ¶ 23]. 

After completion of the hearing, the Hearing Committee must provide the 

 

6

 This section was renumbered in the 2013-2014 RFP as § 6.3.2. [PSOF ¶ 17]. 

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Chancellor and the faculty member with a summary of the evidence that was presented 

during the hearing, render “binding written findings of fact and conclusions of law” and 

forward them along with its recommendation regarding dismissal to the Chancellor. 

(RFP § 3.15.7). [PSOF ¶ 24]. (Emphasis added.) The Chancellor may meet with the 

Hearing Committee to clarify any questions he/she may have; and may then adopt the 

Hearing Committee’s recommendation regarding dismissal or make his/her own 

recommendation and forward the recommendation along with the summary of the 

evidence, a copy of the findings of fact, conclusions of law, and final recommendation 

of the Hearing Committee to the Governing Board. (RFP § 3.15.8.). [PSOF ¶ 25]. 

The Governing Board will meet with the Faculty member and/or his/her 

representative and a representative of the administration to hear arguments regarding the 

Chancellor’s and the Hearing Committee’s recommendation regarding dismissal. [PSOF 

¶ 26]. The parties are to have no less than one-half hour to present their respective cases 

(RFP § 3.15.9.). [PSOF ¶ 27]. The Governing Board, at a public meeting, shall render a 

final decision for the retention or dismissal of the Faculty member (RFP § 3.15.10.). 

[PSOF ¶ 28]. 

C. The Hearing Committee Rendered Its Findings of Fact and 

Conclusions of Law and Recommended to the Governing Board that 

Martinez’s Employment Not Be Dismissed 

Martinez exercised her right to an evidentiary hearing regarding the allegations 

in the August 9, 2013 Statement of Charges, which was held on November 18, 2013. 

[PSOF ¶ 29]. On December 9, 2013, after considering the pleadings and evidence 

presented at the hearing, including expert testimony, the Hearing Committee issued its 

written Findings of Fact, Conclusions of Law, and Recommendation, in which it made 

the following binding findings: 

[Phoenix College] failed to carry its burden of proof relating to violation 

of MCCCD’s cash handling rules found in MCCCD Administrative 

Regulations 1.17, violation of Residential Policy Manual 3.2.4 (relating to 

financial interests in unpublished materials), violation of U.S. Copyright 

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Law and fair use guidelines, and violation of MCCCD Administrative 

Regulations 3.2.4 and 3.2.5 related to copyright regulations. 

[PSOF ¶ 30]. 

The Committee further found, however, that Martinez “willfully and 

intentionally failed to follow instructions that were communicated to her when she 

failed to issue refunds to students as directed by President Solley in violation of 

MCCCD Administrative Regulations 6.7.1. and 6.7.3. [PSOF ¶ 31]. 

Based on its findings, the Committee recommended that the Governing Board 

deny the termination request and allow Martinez to continue her MCCCD employment. 

[PSOF ¶ 32]. The Hearing Committee then delivered to Glasper its summary of 

evidence, findings of fact, conclusions of law, and final recommendation. [PSOF ¶ 33]. 

D. Glasper Unilaterally Suspended Martinez for What Amounted to 

Sixteen Months Without Pay or Benefits 

On February 10, 2014, pursuant RFP § 3.15.8., Glasper sent a letter to the 

President of the Governing Board indicating that he had accepted the Hearing 

Committee’s recommendation that Martinez not be dismissed. [PSOF ¶ 34]. Glasper 

could have recommended that the Governing Board suspend Martinez. [PSOF ¶ 35]. 

However, he did not do so. [PSOF ¶ 36]. 

Instead, the same day, Glasper sent Martinez a letter stating that: 

Based upon the [attached] written statement of charges, I have decided to 

suspend your employment under my sole authority as Chancellor pursuant 

to section 3.11 of the Residential Faculty Policies.7 The purpose of this 

letter [is] to notify you that your suspension from your position as 

Mathematics faculty at Phoenix College will begin on March 1, 20148

 and 

end on May 15, 2015. Your teaching responsibilities and pay will resume 

Fall semester, 2015 unless you choose to retire (see below). 

 

7

 This section was renumbered under the 2013-2014 RFP. Under the previous RFP, for 

2012-2013, it was numbered as § 3.13. [PSOF ¶ 38]. 

8

 The suspension was later pushed back to April 14, 2014 due to scheduling conflicts 

for a meeting between Glasper, the Vice-chancellor of HR and Martinez. [PSOF ¶ 39]. 

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Having sought the advice of the General Counsel as required by Section 

3.11.3 of the RFP, I am satisfied that your procedural rights concerning 

the grounds for suspension have been met. The basis for this action is the 

unanimous finding of an independent hearing committee that you willfully 

violated the district policies set forth in the statement of charges and that I 

have the authority to suspend your employment without pay. 

Also under the terms of subsection 3.11.3, the interim Vice Chancellor for 

Human Resources will offer to consult with you...concerning the 

rationale for this decision. If you accept his invitation, he will deliver this 

notice and attachment after the meeting. If you decline your opportunity 

to consult with him, he will have the decision delivered to you in 

accordance with the policy. 

You may voluntarily retire from your position in lieu of this suspension 

without pay....9

[PSOF ¶ 37]. (Emphasis Added.) 

 Along with the Notice of Suspension without Pay, Glasper provided Martinez 

with a new Statement of Charges, also signed by Glasper, in which the allegations in the 

August 9, 2013 Statement of Charges are essentially repeated, but in which it is also 

written, in pertinent part, as follows: 

 Based upon the findings of the hearing committee which are 

attached to this statement, and the record of their proceeding, I 

have determined as follows: 

****** 

An additional concern arose after a student brought the copying to PC’s 

attention, complaining you did not provide receipts for the material 

charges. MCCCD Administrative Regulation 1.12 states as follows: 

‘1.12.2 Authorization 

Prior to participating in the sale of products or services, Revenue 

 

9

 This was the first time in his nearly thirteen years as Chancellor that Glasper 

suspended a faculty member under 2013-2014 RFP § 3.11 or an equivalent section from 

previous RFPs. [PSOF ¶ 40]. The only other unpaid suspension Glasper issued under 

this policy, pursuant to with faculty members are “normally paid”, occurred in 

February, 2016, the last month of Glasper’s employment with MCCCD, and after this 

lawsuit was filed. [PSOF ¶ 41]. It was a three-day suspension that involved no loss of 

benefits. [PSOF ¶ 42]. 

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and Expenditure categories must be included in a program’s 

budget, and approved by the Governing Board during the annual 

budget adoption process, or as legally changed the first year 

1.12.6. Fees 

Fees exchanged for products or services produced through an 

educational, training or service activity shall be pre-approved by 

the Governing Board.’ 

Phoenix College determined that your course materials charge was not 

included in the adopted budget or pre-approved by the Governing Board. 

[PSOF ¶ 43]. (Emphasis added.) 

Neither this allegation nor the cited regulations were mentioned in the original 

Statement of Charges dated August 9, 2013. [PSOF ¶ 44]. Instead, they appeared for 

the first time in the February 10, 2014 Statement of Charges. [PSOF ¶ 45]. 

E. Martinez Suffered Damages as a Result of the Suspension 

As a result of her suspension, Martinez did not receive any salary or benefits 

from April 15, 2014 to the beginning of the Fall semester in August of 2015. [PSOF ¶ 

46]. The benefits lost to Martinez during that period included, among other things, 

medical insurance, dental insurance, paid sick leave, personal leave, basic life insurance, 

accidental death & personal loss insurance, mid-term disability insurance and access to 

the employee assistance program. [PSOF ¶ 47]. Martinez also suffered emotional 

distress related to the lack of due process and her long-term suspension. [PSOF ¶ 48]. 

III. LAW AND ARGUMENT 

A. Martinez Has a Property Interest in Her Employment Which 

Defendants Could Not Impair Without Due Process 

The Fourteenth Amendment’s Due Process Clause provides that no State “shall 

deprive any person of life, liberty or property, without due process of law”. U.S. Const. 

amend. XIV. § 1. “Property” is a broad concept that relates to the whole domain of 

social and economic fact. Logan v. Zimmerman Brush Co., 455 U.S. 422, 430 (1982); 

Board of Regents v. Roth, 408 U.S. 564, 570 (1972). Property interests may take many 

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forms well beyond ownership of real estate, chattels or money. Roth, 455 at 571-72 and 

576. As often as not, property interests are intangible. Logan, 455 U.S. at 430. 

Property interests are not created by the Constitution. Cleveland Board of 

Education v. Loudermill, 470 U.S. 532, 538 (1985). They “are created and their 

dimensions are defined” by laws, rules or understandings derived from independent 

sources such as state law that support claims of entitlement. Id; Roth, 408 U.S. at 577. 

A public employee has a constitutionally protected “property” interest in 

continued employment when the employee has a legitimate claim of entitlement to the 

job. Id. Thus, a public college professor whose office is held under tenure provisions or 

a contract has an interest in continued employment of which she cannot be deprived 

except “for cause,” and which is safeguarded by due process. Roth. 455 at 576-577; 

Logan, 455 U.S. at 430; and Walker v. Berkeley, 951 F.2d 182, 183 (9th Cir. 1991); See 

also Peterson v. Minidoka Cty. Sch. Dist. No. 331, 118 F.3d 1351, 1359 (9th Cir. 1997) 

(finding school policy created a property interest). Moreover, “[t]emporary 

suspensions, like terminations, are deprivations of employment that can implicate the 

protections of due process.” Associations for Los Angeles Deputy Sheriffs v. County of 

Los Angeles, 648 F.3d 986, 991 (9th Cir. 2011); Finkelstein v. Bergna, 924 F.2d 1449, 

1451 (9th Cir. 1991). 

In this case, as noted in Section 2.B., above, Martinez is an appointive faculty 

member pursuant to RFP §§ 1.2. and 3.18.3.4., and as such has continuous rights to 

employment. In addition, pursuant to RFP § 3.11.2., MCCCD may not suspend 

Martinez without just cause. Thus, Martinez has a property interest in her employment 

which MCCCD cannot impair without due process. 

B. Defendants Were Required to Provide Martinez Due Process in 

Connection with Her Suspension 

Once it is determined that a property interest exists and due process therefore 

applies, the question remains what process is due. Federal Deposit Ins. Corp v. Mallen, 

486 U.S. 230, 240 (1988); Loudermill, 470 U.S. at 541. Unlike some legal rules, due 

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process is not a technical conception with a fixed content unrelated to time, place and 

circumstances. Matthews v. Eldridge, 424 U.S. 319, 334 (1975). However, the right to 

procedural due process is “absolute” and the law recognizes the importance to organized 

society that those rights be “scrupulously observed.” Carey v. Piphus, 435 U.S. 247, 

266 (1978); Clements v. Airport Auth., 69 F.3d 321, 333 (9th Cir. 1995). Moreover, 

minimum procedural requirements are a matter of federal law and may not be 

diminished by the fact that a public employer may have specified its own procedures 

that it deems adequate for determining the preconditions to adverse official action. 

Loudermill, 470 U.S. at 540-41; Logan, 455 U.S. at 432.10 

1. Due Process Requires an Impartial Decisionmaker with 

Respect to Discipline 

Whether at the predisciplinary or postdisciplinary stage, due process requires “at 

minimum” a hearing before an impartial tribunal. Clements, 69 F.3d at 333 (citing Ward 

v. Village of Monroeville, 409 U.S. 57 (1972)). The impartial tribunal requirement has 

 

10 Before being deprived of a property interest, a tenured public employment is entitled 

to notice of the charges against her, an explanation of the employer’s evidence, and an 

opportunity to respond. Loudermill, 470 U.S. at 546; Matthews v. Harney County, 

Oregon, School District No. 4, 819 F.2d 889, 892 (9th Cir. 1987). This predisciplinary 

stage is designed to be “an initial check against mistaken decisions,” Loudermill, 470 

U.S. at 545, as opposed to an adjudication of the matter, See Clements, 69 F.3d at 333 n. 

15. Therefore, predisciplinary hearings are typically informal in nature. Sadid v. Vailas, 

936 F.Supp.2d 1207, 1229 (D. Idaho 2013); and the decisionmaker at the 

predisciplinary stage need not be impartial. Walker, 951 F.2d at 184. 

However, the usual non-adjudicatory nature of predisciplinary hearings is 

expressly conditioned on the employee’s ability to receive full due process rights at a 

post disciplinary hearing. Loudermill, 470 U.S. at 545 and 547, n. 12 (the existence of 

adequate post-disciplinary procedures is relevant to the necessary scope of predisciplinary procedures); Walker, 951 F.2d at 184 (a predisciplinary hearing need not be 

a full adversarial hearing, and the failure to provide an impartial decisionmaker at the 

predisciplinary stage does not create liability, so long as the employee is provided a full 

hearing and an impartial decisionmaker at the post-disciplinary hearing.). Thus, where a 

meaningful review before an impartial decisionmaker is not afforded at the post 

disciplinary stage, the burden is on the government to conduct the predisciplinary 

hearing in a manner that affords the employee all the process she is due. Sadid, 936 

F.Supp.2d at 1229. 

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been “jealously guarded,” and has been applied to a variety of settings, including 

administrative adjudications, in order to protect “the powerful and independent 

constitutional interest in a fair adjudicative procedure.” Marshall v. Jericho, Inc., 448 

U.S. 238, 242-243 (1980); Clements, 69 F.3d at 333; and Walker, 951 F.2d at 184 

(failure to provide impartial decisionmaker at the post-termination hearing constitutes 

constitutional error). 

A situation in which an official occupies two practically and seriously 

inconsistent positions, one partisan and the other judicial, necessarily involves a lack of 

due process. Ward, 409 U.S. at 57 (reversing a defendant’s conviction on two traffic 

offenses because he was denied a trial in an impartial tribunal when he was tried before 

the mayor who was also responsible for village finances and the village budget was 

substantially funded through fines obtained through the mayor’s court); Walker, 951 

F.2d at 184 (fatal defect in allowing the same person to serve both as decisionmaker and 

as advocate for the party that benefitted from the decision) (and citing Schweiker v. 

McClure, 456 U.S. 188, 190-91, 197 n.11 (1982) (finding no due process violation 

where Medicare permitted insurance carrier employees to serve as hearing examiners, 

but noting with approval that under the Secretary’s rules, “‘the individual selected to act 

in the capacity of [hearing officer] must not have been involved in any way with the 

determination in question and neither have advised nor given consultation on any 

request for payment which is the basis for the hearing.’”)) (Emphasis added.). See also 

American General Ins. Co. v. Federal Trade Com., 589 F.2d 462, 463-465 (9th Cir. 

1979) (holding Federal Trade Commission’s order was invalid because a member of the 

Commission had previously participated in the case as counsel; and discussing the 

principle and “venerable tradition in Anglo-American legal history” that a party should 

not be the judge in his own case).11 

 

11 Notably, any bias in an administrative process cannot be constitutionally redeemed 

by review of an unbiased tribunal. Clements, 69 F.3d at 333 (citing Ward, 409 U.S. at 

57). An employee with due process rights is entitled to a neutral and detached 

decisionmaker in the first instance. Id. (“Ward holds that subsequent state court 

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 In this case, with respect to the notice of intent to dismiss, MCCCD provided 

Martinez adequate due process. After Glasper made the recommendation of dismissal, 

Martinez exercised her right to a full adversarial hearing. MCCCD then held the 

hearing before the Hearing Committee, a neutral and detached decisionmaker, which 

made binding findings of fact and conclusions of law; and allowed for the Governing 

Board, at the time a neutral and detached decisionmaker, to decide whether to dismiss or 

retain Martinez if Glasper did not concur with the Hearing Committee’s 

recommendation. 

The same cannot be said for Glasper’s suspension of Martinez. By the time 

Glasper made the unprecedented decision, pursuant to 2013-2014 RFP §3.11., to 

suspend Martinez for what amounted to sixteen months,12 rather than to recommend a 

discipline other than termination to the Governing Board, as he could have, he had, as 

previously noted, already recommended Martinez’s dismissal to the Governing Board. 

Moreover, his dismissal recommendation had been followed by a vigorous prosecution 

of the case against Martinez before the Hearing Committee by MCCCD employees and 

counsel who fought to support Glasper’s dismissal recommendation. [PSOF ¶ 49]. 

Glasper’s role as the decisiomaker with respect to Martinez’s suspension was therefore 

inconsistent with his previous role as a partisan in the dismissal case against her, and 

violated Martinez’s due process right to an impartial decisionmaker regarding any 

discipline. 

 

procedures, even if they include de novo review, cannot “cure” bias in the initial 

adjudication. We think this principal applies ...whether a petitioner ultimately regains 

or loses his job.”). 

12 According to Glasper, there is no limit to the amount of time he could have 

suspended Martinez under 2013-2014 RFP § 3.11. with no hearing whatsoever. [PSOF ¶ 

40]. And indeed, § 3.11. has no provision for a hearing before an impartial tribunal. 

This reading of § 3.11, however, would violate Martinez’s due process rights both on its 

face, because Martinez has a property interest in her employment of which she cannot 

be deprived without due process, and in this case, because it would render Martinez’s 

dismissal due process rights meaningless. See Matthews v. Eldridge, 424 U.S. 319, 333 

(1976) (“The fundamental requirement of due process is the opportunity to be heard ‘at 

a meaningful time and in a meaningful manner’” (citation omitted)). 

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2. Defendants’ Failure to Give Martinez an Opportunity to 

Respond to New Allegations in the February 10, 2014 

Statement of Charges Also Violated Martinez’s Due Process 

Rights 

Martinez also has a valid due process claim because, as noted in Section II.D., 

above, Defendants suspended her based in part, upon the allegation, made for the first 

time in the February 10, 2014 Statement of Charges, that her “course materials charge 

was not included in the adopted budget or preapproved by the Governing Board”, 

allegedly in violation of MCCCD Administrative Regulations 1.12.2 and 1.12.6. 

Martinez never received an opportunity to challenge this allegation before a neutral 

factfinder/decisionmaker. Thus, suspending her in relation to this allegation was, in and 

of itself, a violation of her absolute right to procedural due process. 

C. Defendants are Subject to Liability Pursuant to 42 U.S.C. § 1983 

42 U.S.C. § 1983 provides, in pertinent part: 

Every person who, under color of any statute, ordinance, regulation, custom, or 

usage of any State or Territory...subjects, or causes to be subjected, any citizen 

of the United States....to the deprivation of any rights...secured by the 

Constitution and laws, shall be liable to the party injured in an action at law.... 

42 U.S.C. § 1983. A person deprives another of a constitutional right, within the 

meaning of § 1983, “if he does an affirmative act, participates in another’s affirmative 

act, or omits to perform an act which he is legally required to do that causes the 

deprivation of which complaint is made.” Preschooler II v. Clark Cnty. Sch. Bd., of Trs., 

479 F.3d 1175, 1183 (9th Cir. 2007). The elements of a § 1983 claim are (1) the action 

occurred “under color of state law” and (2) the action resulted in the deprivation of a 

constitutional right or federal statutory right. Long v. County of L.A., 442 F.3d 1178, 

1185 (9th Cir. 2006) (citing West v. Atkins, 487 U.S. 42, 48 (1988)). 

1. Martinez has a valid Claim against MCCCD Because She Was 

Suspended Pursuant to an Official Policy of MCCCD 

A “person” subject to liability can be a local governing body. See Waggy v. 

Spokane Cnty., Wash., 594 F.3d 707, 713 (9th Cir. 2010). Under Monell v. Dep’t of 

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Soc. Servs., 436 U.S. 658, 694 (1978), local government entities are subject to damages 

under 42 U.S.C. § 1983 when the plaintiff was injured pursuant to an expressly adopted 

official policy. Ellins v. City of Sierra Madres, 710 F.3d 1049, 1066 (9th Cir. 2013). A 

policy or custom can be found where an “official with final policy making 

authority...delegated that authority to... a subordinate.” Cuyugan v. Pima County 

Community College Dist., CV-15-00260-TUC-RCC (D. Ariz. March 2, 2017) (copy 

attached hereto) (citing Menotti v. City of Seattle, 409 F.3d 1113, 1147 (9th Cir. 2005)). 

A plaintiff seeking to establish municipal liability must demonstrate that the 

government policy was the “moving force” behind the constitutional violation he 

suffered. Gravelet-Blondin v. Shelton, 728 F.3d 1086, 1096 (9th Cir. 2013). 

In this case, Glasper acted under “color of state law” in suspending Martinez. 

Pursuant to A.R.S. § 15-1444 A.6, MCCCD’s Governing Board may employ professors, 

lecturers and other employees it deems necessary. Under A.R.S. § 15-1444 A.8, the 

Governing Board may also remove any employee. Pursuant to A.R.S. § 15-1444 B.4, 

the Governing Board “may adopt such policies as are deemed necessary...” Moreover, 

as noted in Section II.B, above, the Governing Board approved the 2013-2014 RFP as 

the policy governing the terms and conditions of MCCCD’s residential faculty 

employment on September 24, 2013. In February of 2014, Glasper took action to 

suspend Martinez pursuant to 2013-2014 RFP § 3.11., ostensibly under his delegated 

“sole authority”. Glasper’s action, taken pursuant to MCCCD policy and thus under 

color of state law, was the moving force in the illegal deprivation of Martinez’ property 

interest in continued employment. 

2. Glasper Is Liable in his Personal Capacity 

It is well settled that a “person” subject to liability can be an individual sued in 

an individual capacity (see Devereaux v. Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001) 

(en banc). In order to be individually liable under § 1983, an individual must personally 

participate in an alleged rights deprivation. Avalos v. Baca, 596, F.3d 583, 587 (9th Cir. 

2010). For the reasons noted in Section C.2., above, Glasper is personally liable in this 

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matter. 

D. Martinez is Entitled to Compensatory Damages 

A plaintiff deprived of a property interest without due process can recover 

compensatory damages if the deprivation is determined to be unjustified. Knudson v. 

Ellensburg, 832 F.2d 1142, (9th Cir. 1987) (citing Carey v. Piphus, 435 U.S. at 266-67). 

Compensable damages include recovery of the value of the plaintiff’s property interest 

and emotional distress. Id. In this case, as noted in Section II.E. above, Martinez 

suffered a substantial loss of salary and benefits, as well as emotional distress, as a 

result of Defendants’ constitutional violations, for which she is entitled to compensatory 

damages. 

A plaintiff who prevails on a due process claim is also entitled to the process that 

was due. Brady v. Gebbie, 859 F.2d 1543, 1551 (1988). However, such a remedy would 

not be appropriate in this case if it involved the Governing Board, because it now has a 

pecuniary interest in the outcome of any decision it would make regarding Martinez’s 

case. As a result, its participation would now deprive Martinez of due process. See 

Ward, supra. 

IV. CONCLUSION 

For the reasons set forth above, Plaintiff Cleopatria Martinez respectfully 

requests that the Court grant Martinez’s Motion for Summary Judgment against 

Defendants Maricopa County Community College District and Rufus Glasper. 

RESPECTFULLY SUBMITTED this 3rd day of March, 2017. 

 ROBAINA & KRESIN PLLC

 By /s/ Edmundo P. Robaina 

 Edmundo P. Robaina 

 Thomas T. Griffin 

 Ashley A. Marton 

 

 Attorneys for Plaintiff Cleopatria Martinez 

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CERTIFICATE OF SERVICE 

I hereby certify that on the 3rd day of March, 2017, I caused the foregoing 

document to be electronically transmitted to the Clerk’s Office using the CM/ECF 

System for filing and transmittal of a Notice of Electronic Filing to the following 

CM/ECF Registrants: 

Pavneet Singh Uppal 

Shayna H. Balch 

FISHER & PHILLIPS LLP 

3200 North Central Avenue, Suite 805 

Phoenix, Arizona 85012-2425 

puppal@laborlawyers.com 

sbalch@laborlawyers.com 

 Attorneys for Defendants 

By /s/ Gaynell Carpenter 

Case 2:15-cv-01759-NVW Document 71 Filed 03/03/17 Page 18 of 18