Case 2:15-cv-01759-NVW Document 73-7 Filed 03/03/17 Page 1 of 44
M A R f C p P A Vice Chancellor COMMUNITY

~ Q ~, ~, ~ ~ ~ 9~ Human Resources

2411 W.14tfi Street, Ternpe, Arizona 85281.942 + 7 480.731.8103 • F 484.73J.,8120 ~ www.marlcapa.edu

April 14, 2014

Dr. Cieapatria Martinez

7030 N. 21'~ Street

Phoenix, AZ 8S02p

Re: Update to Notice of Suspensian without Pay

Dear pr. Martinez.

Your Notice of 5usp~nsion without Pay, dated February 10, 2014, has been upd~t~d. The

February 10th notice advised you that your suspension without pay would begin an Match 1,

2014 and end nn May 15, 2015. The dates of your suspension without pay have been revised as

follows;

Your susp~nsian without pay from your position ~s Mathematics faculty at Phoenix College will

begin ors April ].S, 2014 and end do May 15, 2015. Your teaching responsibilities and pay will

resume Fail semester 2015, should you choose to return.

Although your paid administrative leave will cease after this Friday, April ~,1, 2014, and your

unpaid suspension will begin on Apri! 12, 2014, your benefits will continue through April 30,

2014. Zenith Admfnistr~tars wiN se»d you a Cobra Native within fourteen days csf the end of

your coverage.

ely

Rufus Clasper, Ph.a., CPA

Chancellor

Cc: dr. Anna 5oliey

laCoya Shelton-Jackson, VCHR

Personnel Ile EXNI IT

WIT: _~. • r~Cl=: ~j,-~-

Angela F MiUur, RPR, CR

Ten colleges nttd neu skrfl centers dullcated td student success.

Chandler~Gilbert I Estrella Mountain t Gateway I (ilendele I Mesa I Perac~se Valley I Pht~ix

Rio Salado ! Scathsd~e I South Mounh~n i Maricoga Skill Canker 1 Southwest Ski! Center

Case 2:15-cv-01759-NVW Document 73-7 Filed 03/03/17 Page 2 of 44
Case 2:15-cv-01759-NVW Document 73-7 Filed 03/03/17 Page 3 of 44
Stephen NlonEoya Montoya, Jimenez &Pastor, l'.A.

AtEorney at Law 3200 Nor@h Central Avenue, Suite 255p

Phoenix, Axizona 35012-2490

TeIe: 602-256-671$; Fax: 602-256-6b67

stephen~montoyala~cvgroup.conl

March 12, 20~~4

SENT VIA EMAIL ONLY

Doyle. Burke, President

Office of the Governing Board

Maricopa Community Colleges

24'11 West 74'h Street

Tempe, Arizona 85281

doyie,burke(c7,domail.maricapa.edu

Alfredo Gutierrez, Member

Office of the Governing Board

Maricopa Community Colleges

2411 West 14th Sfireet

Tempe, Arizona 8528

alfreda.qutierrez(cx~domail.maricapa.edu

Randolph S. Elias Lumm, Member

Office of~the Governing Board

Maricopa Community Colleges

24~ 1 West '(4'h Street

Tempe, Arizona 8281

randoiph.lumm(a?domail.maricopa.edia

Debra Pearson, Member

Office of the Governing Board

Maricopa Community Colleges

249'1 West 14'" Street

Tempe, Arizona 85281

debra.pearson(a~domaii.maricopa.edu

Dana G. Saar, Member

Office of the Governing Board

Maricopa Community Colleges

241 ~f West ~ 4t'' Street

Tempe, Arizona 85281

dana.saar(cr~domail.maricopa.edu

N I .~I

r :~

..

Case 2:15-cv-01759-NVW Document 73-7 Filed 03/03/17 Page 4 of 44
March 12, 2014

page 2

Re: Petition to the Governing Board by Professor Cleopatri_a

Martinez

Dear Honorable Members of the Governing Board:

This letter is to alert the Governing Board of a grave injustice

perpetrated against a faculty member by the Chancellor of the Maricopa

County Community College District in viola#ion of the ex~aress provisions of

the District's Residential Faculty Policies ("RFP"). This injustice is of

special concern to the Board because the Chancellor's unilateral actions

have usurped the Board's authority to terminate and otherwise discipline

its employees under the RFP.

Specifically, Cleopatria Martinez has been employed by the District

as a Professor of mathematics sincQ .January 1, 1985. See attached

Exhibit A, ¶ 1. In almost thirty-years of dedicated service to the District,

Professor Martinez has no prior record of discipline.

On August 9, 20 3, the Chancellor of the District, Dr. Rufus Clasper,

served a "Statement of Charges" on Professor Martinez alleging that she

violated the District's "cash handling" rules and .violated United Stales

copyright laws. See attached Exhibit B. The Chancellor recammen~ed

that Professor Martinez be dismissed from emplayrnent at the District

based upon the misconduct alleged in the Statemen# of Charges, although

Professor Martinez has been employed by the District for almost #hirtyyears and has no record of previous discipline. Id.

Professor Martinez exercised her right to appeal from the

Chancellor's recommended dismissal pursuant to RFP 3.75.3. See exhibit

C. On November 18, 207 3, a Hearing Committee conducted an

evidentiary hearing ~tnd considered both testimonial and documentary

evidence regarding the District's Statement of Charges against Professor

Martinez. After considering all of the evidence, the Hearing Committee

unanimously rendered the following conclusion:

PC failed to carry its burden of proof relating to

violation of MCCCD's cash handling rules found

in MCCCD Administrative Regulations 7.77,

violation of Residential Policy Manual 3.2.4

(relating to financial interests in unpublished

materials), violation of U.S. Copyright Law and

Case 2:15-cv-01759-NVW Document 73-7 Filed 03/03/17 Page 5 of 44
March 12, 2014

page 3

fair use guideEines, and, violation of MCCCD

Administrative Regulations 3.2.4 and 3.2.5 related

to copyright regulations.

See Exhibit A, ¶ 63.

Notwithstanding the Hearing Committee's unanimous cancfusion

that the District had failed to satisfy its burden of proof, the Chancellor

unilaterally suspended Professor Martinez on March 7, '2014 without pay

for fourteen (14) monthsfrom March 1, 2014 to May 15, 2015, based

upon an entirely new Statement: of Charges back-da#ed to February 10,

2074 that contains facfis specifica}ly re~ecte~ by the Hearing Cornmiftee.

See attached Exhibit D.

The Chancellor's rejection of the Hearing Committee's factual

findings and unilateral imposition of afourteen-month, unpaid suspension

on Professor Martinez violates the District's Residential Faculty Policies

and flatly usurps the Board's ultimate authority to discipline its employees.

Specifically, RFP 3.13 provides that:

3.13. faculty Member Dismissal—

Probationary and Appointive

A Faculty member who is recommended, by the

College President, through the Chancellor, to the

Governing Board, for dismissal shill have access

#o the following due process procedures.

3.13.7 .

A written statement of charges, formulated by the

College President, sha41 be forwarded to the Vice

Chancellor of Human Resources. After review of

the charges, the Vice Chancellor, in' consultation

with the MCCCD Legal Office, may recommend,

to - the Chancellor, that there exists prima facie

ca~~se for the dismissal of a Faculty member. The

Chancellor shall inform the Governing Board in

writing, with a copy of the recommendation being

sent (U.S. certified or registered mail) to the

Faculty member at his/her place of residence as

Case 2:15-cv-01759-NVW Document 73-7 Filed 03/03/17 Page 6 of 44
March 12, 2014

page 4

recorded in the MCCCD records. The Vice

Chancellor's recommendation will give nonce to

the Chancellor, Governing Baard, and the Faculty

member of the intention to formally recommend

dismissal, which shall not be sooner than thirky

(30} days from the date of the letter, nor later than

the end of the current academic year.

3.13.2.

A written statement of charges shall be provided

to the Chancellor, Governing Board, and the

Faculty member as an attachment to the

notification ouflined in the preceding paragraph.

The statement_ of charges shaif state, if

applicable, the statutes, policies, rules, or written

objectives of the College that the Faculty member

is alleged to have violated. The statement Qf

charges shah be of such specificity that the

Faculty member will be able to prepare a defense

based on the statement.

3.13.3.

The Faculty member shall have the right #o a

hearing by filing a written request with the ViceChancellor within five (5) business days after

being served with a notice of intent to dismiss.

The filing of a timely request shall suspend the

dismissal procedure, pending the completion of

the hearing.

3.13.4.

Upon request, a Hearing Committee shall be

constituted within five (5} business days and shall

be composed of three (3) Faculty members: one

(1) appointed by the Chancellor, one (1) selected

by the President of the Faculty Association, and

one (1) selected by the member. All three (3)

shall be Appointive Faculty. The committee

member selected by the Chancellor and the

Case 2:15-cv-01759-NVW Document 73-7 Filed 03/03/17 Page 7 of 44
March 12, 2014

page 5

President of the Faculty Association will be from

colleges other. than the college where the .Faculty

member recommended for dismissal is assigned.

The committee shall be considered constituted

when .the hearing cammitt~e and the Faulty

member have faeen informed by the vacuity

Association President of the committee's

formation.

3.13.5.

The Hearing Committee shall select a Chair.

Unless the parties stipulate to extend the .time

beyond That which is set forth below, the Chair

shall conduct a meeting . with the attorney

representing the MCCCD and the Faculty

member and/or his/her attorneylrepresentative no

later than twenty (2Q) business days of#er fhe

formation of the committee for the purpose of

exchanging exhibits, witness lists, and summaries

of witness testimony. The Chair may choose to

deny admission of an exhibits) or witness

testimony for fail~ire to comply with this Section.

3,13:6.

Unless the parties otherwise agree, the Hearing

Committee shall conduct the hearing no later than

ten (10} business days after the exchange of

information detailed in Section 3.13.5. Prior to

the hearing, the Faculty member must declare, in

writing, whether he/she wishes the hearing to be

public or in executive session. The member may

attend the hearing; present any testimony,

evidence, or statements, oral or written, in his/her

behalf; and be represented by legal counsel or

other representative. It is expressly understood

the act of testifying will not be subject to reprisal

by the MCCCD.

Case 2:15-cv-01759-NVW Document 73-7 Filed 03/03/17 Page 8 of 44
March 12, 2014

page 6

3.13,7.

Within five (5) business days after completion of

the hearing, the Hearing Committee shall provide

the Chancellor, and the Faculty member with a

summary of the evidence that was presented

during the hearing. In addition, the Hearing

Committee shall render binding written findings of

fact and conclusions of law and forward these

along . with its recommendation regarding

dismissal to the Chancellor. The above deadline

may be extended up to fifteen (15) business days

after completion of the hearing, if the Hearing

Committee requests briefs andlor recommended

findings of fact anci conclusions of law from the

parties.

3.13.8.

After receiving the Hearing Committee's summary

of evidence, findings of fact, conclusions of law,

and final recommendation in regard to dismissal,

the Chancellor, may meet wifih the Hearing

Committee to clariFy any questions he/she may

have. The Chancellor shall have 'ten (10)

business clays in which to review the

rEcorrimendation regarding dismissal. The

Chancellor may adopt the Hearing Committee's

recommendation regarding dismissal or :make

hislher 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 recommendations of

the Hearing Committee to the Governing Board.

3.'f 3,9.

The Governing .Board will meet with the Faculty

member andlor hislher representative and a

representative of the administration to hear

arguments regarding the Chancellor's and the

Hearing. Committee's recommendation regarding

Case 2:15-cv-01759-NVW Document 73-7 Filed 03/03/17 Page 9 of 44
March 12, 2014

page 7

disrnissa). This meeting will be an executive

s~:ssion unless the Faculty member chooses to

have this meeting in public. The parties shall have

no less than one-half hour to present ..their

respective cases. The length of the meeting shat!

not exceed one {1) hour.

3.'13.10.

The Governing Board, at a public meeting, shall

render a final decision for retention or dismissal of

the Faculty member. A copy of the fina{ decision

shall be sent (U.S. certified or registered mail) to

the Faculty member at his/her place of residence

as recorded in MCCCD records. It is expressly

understood thafi the Governing Board decision

does not diminish the Faculty member's. right to

seek o#her' legal remedies under local, state and

federal law.

As explained below, the Chancellor's unilateral suspension of

Professor Martinez violates her rights under the RFP and her right to due

process under Arizona and federal law.

First, the Chancellor's new Statement of Charges of February 10,

2014 confains allegations regarding Professor Martinez's alleged violation

of federal copyright law that were expressly considered and re'ected ~by the

Hearing Committee: Specifically, although the Hearing Committee

specifically concluded that the District failed to meet its burden of proof

regarding its allegation that Professor Martinez violated federal copyright

laws, see Exhibit A, ¶ 63, the Chancellor's Statement of Charges

specifically faults Professor Martinez for violating federal copyright laws.

See Exhibit D, p_ 2.

Similarly, the Chancellor's new Statement of Charges also contains

violations that were not set forth in the original Statement of Charges of

August 9, 2013 and that were never even considered by the Hearing

Committee. For example, the Chancellor's new Statement of Charges of

February 10; 2014 claims for the first time that Professor Martinez violated

MCCCD Administrative Regulations 1.72.2 and x.12.3. See Exhibit D, p.

3. Neither of these regulations were even mentioned in the original

Statement of Charges.

Case 2:15-cv-01759-NVW Document 73-7 Filed 03/03/17 Page 10 of 44
March 12, 2074

page 8

In addition to violating the RFP, the Chancellor's new Statement of

Charges violates Profiessor Martinet's due process rights under state and

federal law. Specifically, although Professor Martinet's suspension was

predicated upon~a new Statement of Charges, she was never even given

the opportunity .to respond ~o the Statement of Charges in writing before

she--was---suspended,------Moreouer-,--the--Chancellor---also---failed -ta- allovu----

Professar Martinez any opportunity to present evidence refuting the new

Statement of Charges before a. neutral finder-of-fact.. Accordingly, the

Chancellor's suspension failed fio provide Professor Martinez with any due

process at all, although it has severely damaged her reputation and

deprived her of over a year's salary. The Chancellor's violation of

Professor Martinet's due process rights has exposed the District to

substantial liability to Professor Martinez under state and federal law.

Furthermore, althoughunder the RFP, the Chancellor's

Recommendation regarding .the Hearing Committee's findings . and

Conclusions. are subject to the Board's ultimate review and approval, see

RFP 3.73.8-3.13.10 abays, the Chancellor did not submit the suspension

for the Soard's consideration or approval after the Board meets with

Professor Martinez under RFP 3.13.9.

The Chancellor attempted to justify his unilateral, fourteen-month,

unpaid suspension of Professor Martinez by claiming that he is not

required to submit '°suspensions" to Board for approval. However,

because the original Statement of Charges against Professor Martinez

clearly involved "dismissal," not "suspension" both the Hearing

Committee's Recommendation and the Chancellor's Recommendation are•

expressly subject to ultimate Board approval under RFP 3.13:8-3.73.10.

Moreover, the Chancellor cannot be allowed to suspend a faculty

member for fourteen-months without pay without the ultimate approval of

the Board. As the Board is aware, afourteen-month suspension is the

economic equivalent of dismissal. The Chancellor should not be allowed

to de facto terminate the District's employees in the form of lengthy

suspensions without first obtaining approval by the Governing Board. A

contrary conclusion would render the protections set forth in RFP 3.13

nugatory.

Based upon the foregoing—in accordance with RFP 3.13.9—

Professor Martinez hereby petitions the Governing Board. to meet with her

"to hear arguments regarding the Chancellor's and the Hearing

Case 2:15-cv-01759-NVW Document 73-7 Filed 03/03/17 Page 11 of 44
March 12, 2014

page 9

Committee's recommendation regarding dismissal," and conclude that

Professor Martinez has already been punished enough for any underlying

disciplinary infraction and close this matter without either terminating or

suspending her.

Sincer ly,

Step n Montoya

cc: Pavneet Uppai (via email only}

puppal a~.laborlawyers.com

Lee Cambs (via email only)

lee.combs c~domail.maricopa.edu

James Bowers (via email only)

james.bawers a~7damail.maricopa.edu

Tina Emmons (uia email and first class mail)

Assistant to fhe Governing Board

tiny.emmons(c~domail.maricopa.edu

Case 2:15-cv-01759-NVW Document 73-7 Filed 03/03/17 Page 12 of 44
~~~ ~ ~ ~f~

Case 2:15-cv-01759-NVW Document 73-7 Filed 03/03/17 Page 13 of 44
,,,,, BEPORE'I'3-lE GOVERNING BOARll OF THE

MARIC~l'A COUNTY COMMUNITY COLLEGE DFST:tICT

MARIGOPA COUNTY COMMUNITY

COLLEGE DISTRICT, ) I-IEARtNG C~MM]TTEE

~, _ . ) FINDINGS OF FACT, CONCLUSIONS

OF LAW, AND .RECOMMENDATION

DR. C~,E~PATRTf1 MART7NEZ ~ )

Puzsuant to the C?ctober 16, 2013 Sohedulin~; Order, having reviewed all of the parties'

pleadings. and exhibits and conducting a hearing on November 18, 2013, the Nearing Committee ,

(by majority vote} hereby submits the following ~'indirags of Pact, Conclusions of Law and '.

}

12ecommendation.

j T~TNDINGS Q~' FACT

1. Af3er having taught mathematics full-time for ten years at Denver Coz~ununity

Collegs, Dr: GIenpatria Martinez mo'vec~ to Arizona and sfarted teaciuhg mathematics full-time'at. ~ •~ : ;~ ° ~ . ~~ f

ScottsdaXe Ca~icnity College on January 1, 1985. .' ~ _ '

. ~~E .

2. Dx. Martinez voluntarily transferred to Phoenix College ("PC") in 1995 aril has

been. teaching mathennatics theie full=time ever since. I

t - ~ ~ 

~ t

3. I2r. Ivfartinez et,ected to voluntarily transfer #o PC because there were very fev✓' ~ - 'j

'= minority siudeiats attendang~Sc~ttsdale Community College, and she wanted to use her bilingual ~ '

education drills in the nnathematics classroom to better educate the Iar~e number of minority

students attending PC:

4. Dr. Martinez• was elected by her colleagues to serve as the Chairperson of fhe .

- Mathematics Deparhnent of PC from 2002 to 2QOS_

5. In early 2010, PC discovered tl~~t Dr. Cleopatria Martinez may have exposed ~

MCCCD to potential liability for copyright infringement. ,

6. Dr. Martinez testified that, Burin; her twenty-eight years of teaching mathematics

in the ~ICCCD system, she and her calIeagues in the Mathematics Departments of both

Scottsdale. Community College and PC routinely borrowed mathematics problems from ottcer

matherriat'scians to use in their student handouts for educational purposes on a not for profit basis.

7. Dr. Martinez testified, without rebuttal, that this borrowing of mathematics

problems is a longstanding, widespread custom thn>ughout the T7istrict and academia at large.

8. Tttstead of requiring her mathematics students to purchase textbooks, Dr. Tvlartinea

prepared her own co~use materials which she eaIled her "Lecture Notes" and distributed Ehem to

(~

aosssi -1-

Case 2:15-cv-01759-NVW Document 73-7 Filed 03/03/17 Page 14 of 44
her students. MCCCD Exhibit List # 4-5 (Maztinez,Depo., pp. 77:17-78:15, 106:16-1O8:Ib,.

121:25-i~0:13, 132:16-137:25).

9. Dr. Martinez read the Copyright Act of 1976 and believed that it authorized hez to

use small portions of other scholars' work under the "Fair Use" doctrine because she was using it

only for classroom teaching purposes on a not ~'or pxofit basis and her use of the material did not

nndenmine the potential market for the other scholar's work.

10. Per the "Fair Use" docirit~e of the Copyright Act, the "use of a eapyzighted work .

..for purposes such as criticism, comment, news reporting, teaching (including multiple copies

for classroom use), scholarship, or research, is not an infringement of copyright:' 17 TJ.S.G. §

107.

i 1. Dr. Martinez copied problems from copyright protected textbooks and inserted

them into her course materials. MCCCD exhibit List # 4-5 (Martinez Depo., pp. lU6:lb1.08:16).

12. Dr. Martinez, in her Basic Ar.ithmelic (MA'T082} course, copied problems d'szectiy.

from a copyrtghtec~ textbook entitled "basic Mathematics" and inserted Thera into~her "IYIA.T 0~2

Basic Arithmetic. Spring 2x14" course materials which she distributed tq students. MCGCD

Exhibit List # ZO (Full-Sized Excerpted Comparison). She did not seek or. obtain permission

from the copyiri~ht.holder.. ~. . , ~ .. ~ ~ ~ .- - .

I3. Dr. Martinez atsa copied problems cjirectly .from tide Sullivan &Sullivan

"PrecalcuIus" textbook and inserted them into her "MATI.82 Trigonometry Spring 2010" course

materials. MCC~D E~chibii List ~ 22 (Feill-Sized ~x~erpted Comparison). She did not seek or

• obtain permission from the copyright holder.

14. Dr. Martinez did not require her students to purchase textbooks in her Spring

MAT~82 Course. MCCCD Exhibit List # [ 8 (email from Dr. Martinez suiting "I indicated in my

syl}abus that, instead of a published textbootc, I was using leehire notes in my MAT082'elass:')

15. Dr. Martinez did not require her. studenFs to purchase textbooks in her Spring

IvIAT182 Course. ~'ee Dr. Martinet's hearing testimony (conceding that students were not

required to purchase a textbook in her Spring 2010 MAT182 course}.

16. On or around January l2, 2010, MCCCD's Vice President of Academic Services,.

Ronnie Ekliot, sent Dr. Martinez an email notifying her that there wexe aflegeii copyright related

problems with the materials she had pz-inted for the Fall 20b9 and Spring 201Q semesters.

MCCCD EXhibit LisC # 23 (Januuy 12, 20I0 email). The materials in question were packets of

course materials fo~c Dr. Martinet's MAT182 ~uzd MAT187 courses and contained:mathennatics

problems and graphs that were taken from copyrighted textbooks. MCCCD Exhibit List # 1.1

{TZonnie Elliot Declaration, ¶¶$-9); MCCCD Exhibit Lisf # 16 (MAT182 course packetj;

MCCCD Exhibit List # 7 (Sean Garrison October 28, 2010 Memorandum).

17. Ar. Martuzez ❑sed three of the four packets of "lecture notes" in the Spring of

2010 in two pre-calculus classes. See Disfrict Exhibit 6, parts 1-3.

~asssi -2-

Case 2:15-cv-01759-NVW Document 73-7 Filed 03/03/17 Page 15 of 44
~ f

13. The MCCCD administration, foitowing Vice Pfesident Elliot's email, repeatedly

explained its copyrigvt concerns to Dr. Martinez and asked Dr. Martinez to remove and+

copyright proEected mathematics problems From her materia3s. See T~akar Hearing Testimony.

19. On .~ani~ary 26, 2010, Vice President Elliot sent Dr. Martinez an email outlining

MCCCD's concerns regarding Dr. Ivlartinez's potential copyright infringement. i1~CCCD

ExI~ibit List # 24 (January 26, 2b (0 emaiS).

20. 4n January 28, 2Q10, MCCCD in-house-counsel Margaret McConnell discussed

copyright compliance with Dr. Martinez telephonically. MCCCD Exhibit List # 25 (January 28,

202Q email).

2I. Dz. Martinez did not benefit from the multiple iVICCCD copyrz~ht informatiAn

sessions noted above.

22.~ P'C's. own eicpert witness, Sean Garrison, testified Shat under the "Fair Use°

doctrine, someone could lawfully copy from a copyrighted textbook without either using or

parchasing the textbook.

23. On, February S, 2010, Vick: President ~ of Academic Affairs Casartdra ICakar,.

Interim Vice President of Adminiscrazive Services Paul DeRose, and Dr. Nfartinez met to disouss

Dr. Martinez';s alleged:misuse of copyrighted materials., MCCCD E~chibit LisE#..26 (February.,.,.., .. ., _

12; 20I 0 email):. ' . .

24. Dr..iVlartinaz has not used any of ttxe Pour sets of "lecture. notes" since the Spzing

of 2010 when PC first raised its concerns regarding, the notes.

25:~ . (fin Apri1;15; 2010, PC Librarian Ann Roselle conducted. ~.personalized:;one-on- :-.: ...

one copyright training session wi[h Dr: Martinez. MCCCD Bxhzbii List # 28 (Copyright

PowerPoint Presentation). See also, Kakar Hearing Testimony.

26: When Dr. Martinez met with the librarian, tie librarian told Tyr. Martinez that Dr.

Martinez knew as much about copyright law as she did. See Martinez Hearing Testimony.

27. Following the revocation of Dr. iVlartinez's capyin~ pxivileges, Dr. Martinez was

required to submit her copy requests to Mathematics Department Chairperson 1Vfr. Sueyoshi so . _

that Mr. Sueyoshi could review her materials for possible copyright violations prior to copying

and disirebntion to students. MCCCD Exhibit i,ist # 8 {April Z, 20I0 Dsrective).

28. Dr. Martinez sought and obtained a form of written perntission from the publisher

of the textbook, Sullivan ~ Sullivan`s "Precalcnlus," to copy materials from their book QSer PC

accused her of violating copyzight law.

29. Dn or around Apzil 19, 2010, Dr. 11~1artinez attempted to bypass the copying

restrictions by. having an adjunct mathemarics i'rofessor, Sohnny Santellan, make 24 sets of

- copies of her "~.ecture Notes" for dishibution to her mathematics students without obtaining

prior approval from the Mathematics Department Cha4rperson, MCCCD Exhibit List # Z2

(5ueyoshi DeeI., ¶9}; MCCCD Exhibit List ~# 4-5 (Martinez Depo., pp. 223:1 Z-224:21).

406881 -3-

Case 2:15-cv-01759-NVW Document 73-7 Filed 03/03/17 Page 16 of 44
r

~:~~ 30. ~ Because Dr. Martinez did not feel she was able ~to obtain reliable guidance

regarding copyright compliance from the District, she sought aduice from a private intellectual

property attorney regarding the issue, Mr. Frederic Bellamy.

31, i'vlr. Bellamy reviewed the fast two sets of Dr. Martinet's "lecture notes" and

concluded that they did not violate copyright law because they fell unbar the "Fair Use" doctrine.

32. Mr. T3ellamy based his conclusion that Dr. Martinez did not violate copyright law

on the opinion that the portion of material that Dr. Martinez copied from the Sullivan &Sullivan

Precalctilus textbook was very small, that she used the copied materials exclusively for

educational purposes without any profit motive, that the content. of the copied material consisted

of mad~ematics problems that are arguably not sub}ect to copyright in tote ~zst place, and that the

small portion of the textbook that Dr. Martipez copied did not adversely impact the potential

market for the textbook.

~ ~ 33. At flee hearing, anoti~er lawyer practicing in the area of intellectual property law, '

Sean Garrison, tesrifed on behalf of PC. In contrast to Mr. Bellamy, Mr. Garrison testified at the

` ~ hearing that the firsE three sets of. Dr. Martinet's lecture notes vioIaied copyright taw.

E.

{ 34. ' ~ Tn contrAst to his testimony at the hearing of November 18, 2013, in his. written• ~-.

report Mr. Garrison concluded only that the first three sets off' Dr. Martinet's lecture notes

• subjected the District ``to a serious risk of a~copyright infringement clrzi~m," See District Exhibit•;• ..;

• . 6> P: 002. ',

.' 35. MCCCD invited Dr. Martinez to a copyright workshop that was held on March 1,

2Q10 at PC. Dr. Martinez chose not to attend the workshop. MCCCD Exhibit List # 10:{Sa11ey

..Decl., ~jl

.l~' _ .

i ~ 3b. PC President Anna SolIey, on D~cemb.er 9, 201D, concluded that Dx. Martinet's

alleged misconduct posed an unacceptable legal risk of a copyright infringement claim aud.

iinpos~d restrictions on Dr. Martinea's photocopying privileges. MCCCD B~thibit Lisf # ]0

37. MCCCD sought a legal opinion from an outside copyright expert, attamey dean

Garrison. MCCCD Exhibit Y.isi # 14 (Sollay Decl., ¶ 14); MCCCD Exhibit List # 7 (Sean

Gamson October 23, 2010 Nlemo).

38. According to Mr. Garrison, the third set of "lecture notes" appeared to have l3

mathematics problems copied from two other mathematics textbooks.

39. I41r. Garrison testified that he was certain that Ilr. Martinez has committed

copyright infringement. See Garrison Hearing Testimony. In reaching this conclusion, Mr.

Garrison reviewed thousands of pages of materials including nearly 300 pages o£ Dr_ Martinet's

lecture nofes and three separate copyrighted mathematics textbooks. MCCCD Exhibit List # 6

{Sean Garrison Apri] Y 9, 2013 Report); see also C'iarrison Hearing Testimony.

40. Tn .reliance upon Mr. Garrison's recornrnendations, PC President Anna So11ey

issued a December 9, 2014 directive that imposed Further restrictions on Dr. Martinet's copying

406681 -~-

Case 2:15-cv-01759-NVW Document 73-7 Filed 03/03/17 Page 17 of 44
privileges. MCCCD ~~shibit List # 9 (December 9, 20I0 bzrective}; MCCCD Exhibit List # 10

(Solley Decl., ¶1S).

41. The December 9, 2010 Directive prohibited Dr: Martinez fxom utilizing any

course materials of her own creation. MCCCD Exhibit fist # 9 (December 9, ~01~ IIirective).

Instead, Dr. Martinez was required to only usa course materials [hat axe "approved by the

mathemarics degarfinenY' oz Shat are "availabte~in the bookstore for sale to students and that are

authored by persons okher than jDr. Martinez]," MCCCD Exhibit [.ist # 9 (December 9, 2010

T~ireetive)..

42. The December 9, 2010 Directive further required Dr. Martinez to submit her

photocopy requests to the Mathematics Departmen# Chair for his approval. MCCCD Exhibit

~.ist # 9 (December 9, 2010 Directive}.

43. Despite MCCCD's frequent discussions with Dr. Martinez regarding the

importance of complying with copyright laws and the Aeeember 9; 2010 Directive, Dx; Maxtinez

continued to attempt ro ignore the directive. See Kakar Healing Tasti~zvny.

44. At the beginning of.the Fa1120~2 semester (on or about Augus# 21-23, 2012), Dr.'

Martinez informed her students thttt they were not.required to purchase ~ course textbook and

that she would provide them with her own course materials in l~eU ~f a textbook. MCCCD '

Exhibit Dist # 4-S (l+fa~iinez DePo'•; Pp.~232:19-233:21: ~ - .. .... ..... ..

45. In fall. of 2072, Dr. Martinez sought io have her Iecture notes photocopied .off

campus at a nearby Staples store. This practice is inconsistent with the I7eeember 9; 2010

Directive. MCCCD Exhibit List # 9 (December 9; 2010 Dizec#ive); MCCCD Exhibit List # 4--5

(Martinez Depo., pp. 232:19-233:21).

46. Tyr. Martinez dzd not submiCher Fa!! 2012 materials to Mathematics Deparhnent ~

Chairperson Mr. Sueyoshi for approval. MGCGD Exhibit Lis[ # ~1-5 (Martinez Depo., pp:

232:19-233;21).

47. Dr: Iviartinez made copies of her course materials at an off-campus Staples store,

and distributed them to students for $11 per cgpy. MCCCD E~ibit T.ist # 4~5 (Martinez Depo.,

pp.232:19-233:21).

98. The $11 course materi~I fee was paid directly to Dr. Martinez by students.

MCCCD Exhibit List # 4-5 (Martinez Depn., pp.232:19-233:21)..

49. PC accused Dr. Martinez of violating the bistrict's "cash handling" rules by

distributing these course materials to her sh~dents if the students reimbursed hex for her out-ofpacketcopying costs.

5Q. PC subsequently claimed that Dr. Martinez violated the District's "cash handling"

policies by seeking reimbursement for the copies.

51 _ Iv1CCCD's policies prohibit instructors from having "any finaneia! interest in or

receiving] compensation from the sale of any unpublished instructional moierials required or

46681 -SCase 2:15-cv-01759-NVW Document 73-7 Filed 03/03/17 Page 18 of 44
~~ suggested for a class that the instructor teaches:' M~CCD Exhibit i,ist # 41 {Residential Faculty

Policies; 3.2.4}.).

52. Dr. Martinez failed to follow the protocol set forth in the December 9, 2010

pizeclive in copyittg her I~all 20]2 course materials. MCCCD Exhibit .List ~ 9 (December 9,

2fJ10 Directive); MCCCD Exhibit List # 45 (Martinez Depo., pp. 232:19-233.2 1).

53, Dr. Martinez distributed course materials directly to students 3n her Fall 2012

MATI5~ class. MCC~D Eachibit List # 4-~5 (Martinez Depo. gyp. 232:19-233:21).

54. The MCCCD AcImuustration learned of Dr. Martinex's unauthorized distribution

of course materials to students after one of Dr. Martinet's il~1A"~151 students complained to

Mathematics Department Chairperson Mr. Sueyoshi. The student complained that L?r. Martinez

refused to provide her with tt receipt for the purchased course materials. See TCakAr Hearing

Testimony.

55. ~: Upon learnin; that Dr. Martinez hall distributed course materials. to students ,

allegedly in violation of MCCCD's cash bandIing policy, President'Solley iashucCed Martinez to

irrirr►ediateiy~ issue refunds to her students via personal check. MCCCD exhibit List #~ 3. (October.

~' ! $; 2012 Counseling Notice); see•also •ICakar Hearing Testimony.' ~ . ~~ '

.. ~ ~ :: ~ Sb: Un. or around Qctober.18; 2012,:: Piesiderit;$o11ey; and :Dr. Kakar: raet with•_ Dr,..

Martinez to. explain t}~e seriousness of Dr: I~€artinex'sjalle~ed eash~handling.violarion.:bICCCD

ExEiitiit List #~ `3 (Octolie'r 18, 2012 Coanseling 1Votie.~)'; ses also Katcar ~-Iearing.Testimony. In

,~yR~ addition; president Solley and Dr. Kakar prepared'a written counseling memo dated October 18

~` 2010 for Dr: Martinez regarding her alleged violation of cash handling rules. Dc; Martznez was

provided wit~i a copy of the October~.18, 201 cqunseling notice an'd President SoUey. proceeded

tp explain ~to Dr. Martinez the serioiisziess of the alleged cash hancilin~ violatiozis anti the

rcquirerrzent thAt Dr. Martinez issue reiinbursexnents to~ her studenfs. IvICCCD E~iibit List •# 3

(~ctober l 8, 2012 Counseling Notice); see`alsd Kollar Hearin; Testimony:

57. Several months later, on or around January 9, 2013, Dr. TCalcar leuimed that most

(if riot all) students had not yet received refunds from the Dr. Martinez. MCCCD'Exbibit List f€

39 (various emtiils zegazding student refiuids). Asa 'result, Dr. Kakar instructed Dr. Martinez to

provide copies of refund checks by January 18, 2013. MCCCD S~hibit List # 39 (various emails

regarding student refunds}.

5B: Dr. Martinez failed to product a single refund check by the 7anuary 18, 2013

deadline, MCCCD E~chibit List # 39 ('various emaiis regarding student refunds}.

59. Dr. Martinez did not think ihat she had violated any District n~le in reference to

the copies. Tbezefore, she declined to follow the December 9, 2Q10 order because she believed

she was not required to do so under any District rule.

60. At the November 18, 2013 hearing, Dr. Martinez did.not provide any explanation

for her refusal to comply with the October .18, 2012 and January 9, 2033 directives to issue

refunds to her students. See Martinez ~-Tearing Testimony.

acssai -6-

Case 2:15-cv-01759-NVW Document 73-7 Filed 03/03/17 Page 19 of 44
61. At the hearirSg Dr. Martinez testified thAt she had made a "mistake" and, in

reixospect, should have complied tivith Pzesident Solley's instructions. See Martinez Hearing

Tesrimony.

62. On or aroeuzd August 9, 2013, MCCCD Chancellor Rufus Clasper sent Dr.

Maitinez a letter informing her that MCCCD was proceeding with termination proceedings.

Included with this letter was a statement of charges that summarized the particular violations Dr.

Martinez had been charged with (hereinai~er referred'to as "Statement of Charges:') MCCCD

Exhibit List # 1 (Statement of Charges).

CONCLTJSIONS

63. PC failed to carry its burden of proof relating to violation of lYICCCD's cash

handling rules found in MCCCD Administrative Regulations 1,17, violation of Residential

Policy. Manual 3.2.4 (relating to fnancia! interests in unpublished materialsj, violation of U.S.

Copyright Law and fair use guidelines, and violation of MCCCD Administrative Regulations

3.2.E and 3:2,5 related to copyright regulations.- ~ ~ .

64.. I~Totwithstanding their education;. their experience, and their good faith, Mx.

Bellamy and• Mr...C~arrison disagreed as to whethar ar•not Dr. Ivtartinez violated copyright-law.

Therefore, ii is inconcttisive as to whether Dr. Martinez intentionally andlor inadvertently

violated` federaP:coP}ii3ght la~vi :~;` _... .. .

bS. it is inconc3usive as to 'whether ar~riot Dr. lvtattinez violated'the "cash. handling"

gbiicies of I~tCCCD.

66... Dr, ildartirrez wilJfuily and intentionally failed to fo[~ow instructions that were

communicated io Iier when she failed to issue refunds to students as dueeted by President Solley.

. b7. Dr. Martinez conceded that she never complied with President Solley's clear

directive to issue refunds to hex students. Although Dr. Martinez now tegrefs her decision not to

comply with ~'zesident SolIey's directive, she has never claimed that she did not understand the

instructions nr that tine instructions were beyond the scope of management's aathority. Viewed

in light of these facts, lyfartinez's claim that she "made a mistAke" is an admission o~ willful

insubordinaFion.

68. By faili~ig to comply with President Solley's directive to issue refunds to her

students, Dr. Martinez violated NICCCD Administrative Regulation 6.7,1 which prohibits the

"[w]iflful and intenkional violation of any...MCCCT3 administrative regolarioti that affects the

employee's ability to perform his or her job."

69. By failing to comply tivith President Solley's directive to issue refwids to students,

Dr. Martinez violated MCCCD Administrative Regulation 6.7.3 which prohibits the "(w]illfizl

and intentional failure to perform job duties th~hhave first been communicated to an employee

and Are- within the employee's scope of employment."

/!! '

aassa~ -7-

Case 2:15-cv-01759-NVW Document 73-7 Filed 03/03/17 Page 20 of 44
~_

;: ~2ECOIVIlY1ENDATIOrI

l

70;. V,re ii~r~b~ :recorri~nend that the .G;overniiag Board deny Presid"enz Sol~ey.'s

emzmatron xegues~ and a~l'o+u I3r: Iviartinez ta~coniinue-bier 1VI~G.CLF employment.

. ..

71.: F.e~ i~Ce.G17 Aelu~inistrafive :Regulation d.~ ~`dicatiii~ :t[iaf ~+iolatiori aP. ariy

~inp]oXmen~ Stand'ard's.'T~onsfiiutes ~rouind~ f~sr cliscipinaiq° ac~o~r, zip to CempIias~s'add~dj,aridiliciucl?ri~ ferriiii~tion;" wa. FierEli}~ recttmmet~i~ ~tJiat itie: Ugveming, Bo~rrd retaXi,Dr., ivlartiiiez,

i

{

It is gr~ieYetl so;•~;tl`v~esa; A:i~izoria, this 9~th.il~p, o£`Deceirit~erx 2,Q ~ 3,=

..

I~~. Vie'`. City: _ p'~

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~7nt3ehal~of•the Heaxing;Coinmittecr

. I7r~. ~Ior'a Reyes apd 17'r.° Carl.os.~aire: ':

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-~cs~at -~ .

Case 2:15-cv-01759-NVW Document 73-7 Filed 03/03/17 Page 21 of 44
i■~ ~.ir

iii. ~.~.

Case 2:15-cv-01759-NVW Document 73-7 Filed 03/03/17 Page 22 of 44
h1 A R I C O P A ~~fus Giasper CgMMUN1TY

C O L L E G E 5~ Chancellor

2411 W. 14th Street, Teritpe, Arizona 85281-69A2 7 480.731.8100 F 480.731.8120 r.glasper@domail.maricopa.edu

August 9, 2013

Cleopatria Martinez

7030 N. 21 S` Street

Phoenix, AZ 85020

F2e: Intent to dismiss you firom your employment

Dear Dr. Mar#inez:

Dr. Anna Salley, President of Phoenix College (PC) has forwarded a statement of charges to James

Sawers, interim Vice Chancellor for Numan Resources. Mr. Bowers has reviewed the charges, in

consultation with the MCCCD Legal Office, and recommended to me tha# there exists prima facie

cause for your dismissal from your position as Mathematics Faculty at Phoenix College (see

attached). 1 concur with his recomrnendafion. 7"he recommended effective date of your involuntary

termination is September 2A, 2073.

Maricopa County Community College District Administrative Regulation 6.7 slates that violation of

any of its Employment Standards "constitutes grounds for disciplinary action, up to and including

termination of any Maricopa Gounty Community College District (MCCCD) employee as outlined by

the respective policy manuals".

Pursuant to Section 3.95.3 of the RFP Policy Manual, you may invoke your right to a hearing by

filing a written request with Interim Vice Chancellor James Bowers within five (5) business days

after being served with this notice of intent to dismiss you from your employment.

Sincerely,

Rufus Clasper, Ph. D., CPA

Chance►lor

Cc: MCCCD Governing Board

Dr. Anna Soliey

Mr. Jim Bowers

Ten co]leges mid f:vo skill centers t(zdirnted to studrnt tutees;.

Chandler-Gilbert t Estrella Mountain I Gateway I Glendale 1 ~1esa I Paradise Valley I Phoenix

Rio Salado I Scottsdale i South Mountain 1 Maricopa Skill Center I SouihlVest Skill Center

Case 2:15-cv-01759-NVW Document 73-7 Filed 03/03/17 Page 23 of 44
~~ ~1 A R 1 C O F A ~ VIC2 1;11an~oi~n,~

~f3M 1V_711N ITV u~~~~~

•~ ~ ~ Q 1 I F ~ F .C9 1 Human Resources

2~i 3 ri. i4in ~treei, Tempe, Arizona ti52tii•by41 i 4$u.73i.8103 • r ~iisil.%31.£t11u ~~n~nv.mancopa.eU~

Auqust 9. 20'13

Cleo atria Martinez

~Va3V ~ti. L~st VlI~LG

Phoenix. AZ 85020

RE: Em~lovment Sta#~s

Dear Dr. Martinez:

You are being placed on raid administrative leave from August 12 through

September 24, 2013. ~endina the at~nrovai of your termination. During

administrative leave; you will remain an employee of M~ricopa Caunty

Community College District IMCCCD) and must continue to observe ail policies

regarding empiovee conduct.

For the duration ofi paid administrative leave, you should not report to works nor

do you need to make con#act with yo~.ir supervisor. Upon approval of your

termination by the Maricona Countv Community Colleges Governing Board, you

wilt be notified regarding the termination of your emr~loyment status ~v~th

5incereiy, //.e`'

/_,~~~

~, .~

Jame`sT3owers, :~:~,.

Interim Vice Chancellor for Human Resources

cc: Dr. Anna Solle>>

~mnlovee Personnel File

Trig cotI{t rs mrd hru skill t~•~Ucrs iirilir:~trd to :f uduir( :uci ~'>s.

=ra: aler-filbert f Estrella Mountain I Gateway I Glendale i Mesa I Paradise Valley I Phoenix

Rio Salado I Scottsdale 1 South Mountain I Marico~a Skill Center 1 South'Nest Skill Center

Case 2:15-cv-01759-NVW Document 73-7 Filed 03/03/17 Page 24 of 44
~~ M A R I C O P A 

' 

Vice Chancellor COMMUNITY

COLLEGES' ~Ulllafl R@SOl1CC6S

7.411 W. 14th Street, Tempe, Arizona 3528]-&942 • T x80.731.8103 ~ F 480,731.5120 wrvnv.maricopa.edu

August 9, 2013

Dear Dr. Clasper:

The following statement of charges against Dr. Cleopatria Martinez was forwarded to me by Dr.

Anna So11ey, President, Phoenix College. Pursuant to 3.15.1 of the Residential Faculty Policy

(RFP), 1 have reviewed the charges, in consuftatian with the MCCCD Legal Once, and

recommend to you that there exis#s prima facie cause for the dismissal of Dr. Cleopatria

Martinez.

Sincere)

James owers, J.D.

Interim Vice Chancellor for Human Resources

Statement of Charges

• Violetian of Administrative Regulation 6.7.7 - "Willful and intentional violation of any state

or federal law, applicable ordinance, MCCGD 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.E - "A Faculty member shall not have

any financial interest in or receive compensation from the sale of any unpublished

instructional materia{s required or suggested for a class that the Faculty member

teaches."

• Violation of. t1.5. Copyright Law and fair use guidelines, and MCC;CD Administrative

Regu{ations 3.2.4 and 3.2.5 regarding copyright regulations:

3.2.4 Empi4yees are prohibited from copying materials not specifically

al{owed 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 andlor

the aforementioned copyright guidelines do so at their own risk and

assume all liability for their actions.

Trn mlle•~ty nn~i :ra>kril eenteis dcdir?trd fu>hui~~in >~:crt.;s

Chandler-Gilhert i Estrella Mountain I Gateway i Glendale i Ylesa I Paradise ~/alley I Phoenix

Rio Salado I Scottsdale 1 South iblountain I Nlaricopa Skill Center 1 South`vVest SSeill Center

Case 2:15-cv-01759-NVW Document 73-7 Filed 03/03/17 Page 25 of 44
duties 

Volatinn 

that 

of 

have 

Administrative Regula#ion 6.7.3 - "Willful and intentional failure to perform job

scope 

first been communicated fo an employee and are within the employee's

printing/copying 

of empiaymenY', specifically, repeated failure to folio+N instructions regarding

unauthorized 

of unauthorized materials, failure to use only approved course materials,

materials you 

copying 

wrongfully 

and sale of course materials, failure to reimburse students for the

copies of any 

charged them for, and failure to meet the deadline to provide reimbursement checks to students.

Brief Timeline:

• 

Kakar; 

January 2010 - Co)lege Vice Presidents Ronnie ~Iliott, Paul DeRose and Cassandra

requirements 

slang wi#h Maggie McConnell; Assistant General Counsel, reviewed the of AR 3.2 with you at length.

• April 

privileges 

2, 2010 

at 

Anna So)ley, Phoenix College Presiden#, notified you that your copying the Pi~oenix College IKON Gopy Center were suspended.

• 

complaint. 

Spring 20'10 --An Administrative Evaluation was initiated based on Mr. Joe Sueyoshi's

semester. The 

By agreement, the Evaluation Team did not undertake its task unfit the fall

November 

findings and recommendations were submitted to Dr. Soffey an 77, 2Q90. The overall findings included:

o 

MCCCD's 

Copyright and 

and 

plagiarism: Dr. Martinez was notified in writing and in meetings of Phoenix College's concerns regarding her course materials violating copyright, fair use, and plagiarism laws.

o 

Counsel's 

Insubordination: Dr. Martinez failed tQ follow Dr. Solley's and MGCCD's Legal

printed unauthorized 

directives -specifically, she repeatedly requested copies, copied and ma#erials.

• 

insubordinafion 

December 9, 20'i 0 -- Dr. Sol(ey administered an initial Corrective fiction to you for

unauthorized 

and failure to follow instructions regarding printing or copying of materials.

• 

approved 

August 2'1-23, 

text that 

2012 -You fold your MAT 091 and MAT 151 students not to buy the

materials and 

you listed on the syllabus. Instead, you made copies of a colleague's sold them to your students far $11 each.

• 

copying 

October'i8, 

and 

2012 —A Second Corrective Action for insubordination and unauthorized

the corrective 

sale 

action 

of course 

was 

materials was administered to you by Dr. Solley. included in

your students without 

the following directive: "Because you imposed charges on

students from your 

authority to do so, you have the responsibility to reimburse the

beginning immediately 

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

• January 

and continuing until all students who paid you are reimbursed."

course materials 

1'1, 2013 —Upon discovering that the students who bought your unauthorized

provide her, by January 

had yet to be reimbursed, Casandra Kakar directed you, via email, to

reimbursement 

18, 2013, with front and back copies of al! cashed persona! checks to your students.

• 

checks 

January 

and 

18, 2Q13 -You failed to provide Dr. Kakar with copies of any reimbursement

o February 

neglected to contact her regarding the money you still owe the students.

B290. Timothy 

21, 2013 

Bryan, 

— A student turned in the MAT091 materials which you left in room

have permission 

Mathematics Faculty, has previously told you that you do not to use his materials again!.

Case 2:15-cv-01759-NVW Document 73-7 Filed 03/03/17 Page 26 of 44
~XHI~IT ~

Case 2:15-cv-01759-NVW Document 73-7 Filed 03/03/17 Page 27 of 44
SEephen IVlontoya Montoya, Jimenez &Pastor, P.A.

Attorney at L~tv 3200 North Cen~~al Avenue, Spite 2550

Phoenix, Arizona 85012-2490

`Pele: 602-256-671~g; Fax: 602-256-bb67

stephen~montoyala~vgzoup.com

August 16, 2013

SENT V!A EMAlL (JAMES.BOWERS@DOMAIL.MARICOPA.EDU},

FAX (480-731-8120), AND FIRST CLASS MAIL

James Bowers, J.D.

Interim Vice Chancellor for Human Resources

Maricopa Community Colleges

2411 West 14~' Street

Tempe, Arizona 85281-6942

Re: Cleo atria Martinez; Request for Hearing

Dear Mr. Bowers:

Pursuant fo Section 3.15.3 of the Maricopa Community College RFP

Manual, Dr. Cleopatria Martinez hereby invokes her right to.a hearing regarding

her proposed dismissal from the ivlaricopa County Community College Disfrict.

We ask that the proposed termination of Dr. Martinez be rejected because

it is based upon a misunderstanding of the underlying fads end applicable law, in

addition to improperly ignoring Dr. Martinez's Twenty-eight years of exemplary

service to the District.

[ will be serving as Dr. Nl~:~~nez's legal counsel in connection with the

proposed dismissal. -

Thank you very much.

Sincerely

.:r

Siephen Montoya

Case 2:15-cv-01759-NVW Document 73-7 Filed 03/03/17 Page 28 of 44
Blank Page 1 of 1

A~rif Roil

From: April Roll

Sent: Friday, August 16, 2073 1:55 PM

rfl: 'fames.bowers@darr~ail.maricopa.edu'

Cc: Steve Montoya

Sabject: Cleopatria Martinez

Attachments: martinez—letter bowers 01.pdf

IV1r. Bowexs:

Pease see attaclied Ietfer of today regardinb Ms. Mareinez. The original will follow' by first class _ _ .. mail.

Thankyoiz: :-: _... _. _ ..

April Roll

Legal Assistant to Stephen Ivlozltoya .

ManEoya; jzznenez &Pastor,, ,. P.A.:

3200 North Cexii7•aI Flvenue;:Ste. 2550 _. -... _ .....

Phoenzx, Arizona 85012 ..

„Telex 602-256-6718 Fax: b02-256-66b7 __

This electronic mail: transmission contains information from fvlontoya, Jimenez &Pastor; P.A. #hat may be confidential

. and/or privileged. Such information is solely for the inEended recipient, and use by any other party is not authorized.

If you are not the intended recipient, be advised tiiat any disclosure, copying, distribukiori or use'of this email, its

confents or any attachments is prohibited:; Any virongfu! interception of this message is punishable as a federal

crime.

8/16!2013

Case 2:15-cv-01759-NVW Document 73-7 Filed 03/03/17 Page 29 of 44
P. 1

~ Transmiss ~ Result Report(~lemoryTX} (Aug. . 2OI3 I:38PM) ~ ~

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Date/Time; Au;.16. 2013 i:37PM

File Page

No, Mode Destination Pg(s) Result ~~ot Sent

4360 Mernory TX 407313126 P. 2 OK

APRIL ROLL

Reason for error

E. 1) Hang up or linefail E. 2) 6u3Y

E. 3) No answer ~ E. M1) No facsimile connection

s~x~nco~eoy, ~ n,wnwy,,p~aar~aer_n. ni:oro~y ~~ tam• 'azoo xoren c~watnscsut:.;~2~~

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Fus No: (dS0)?31-8720

Frnr.c Stcpbco ~otaya

Ui!c. Auo~-t t(y 2g13

NumCv ol~uges: 2 C~~iWing mvcry~};c)

intcr.Atti 

7'Gu w¢~mrvicaorn u~ Eeirilc~d nrtd co~:lcm-.il endu fcdrra7 am3 sett law ~t if .. j

to be n i~r+~ only by iL•e mcipica st.cc~cd cA~vc 1C Yon ra~x thfc

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Case 2:15-cv-01759-NVW Document 73-7 Filed 03/03/17 Page 30 of 44
Case 2:15-cv-01759-NVW Document 73-7 Filed 03/03/17 Page 31 of 44
rn a r~ ~ c o P a I Rufus Clasper cor~~rnuNirY

COLLEGES'' Chancegor

24114V. 14th Strut, Tempe, Arizona 85281-6942 T 480.731.8100 F 480.731.$120 r.glasper@domail.maricopa.edu

February 10, 2014

Dt~. Cleopatria Martinez

7Q30I~i.21S` Street

Phoenix, AZ 85020

Re: Notice of Suspension without Pay

Dear Dr. Martinez:

Based upon the attached written statement of charges, X have decided to suspend your employment under

my sole authority as Chancelloz pursuant to section 3.11 of the Residezztial Faculty Policies. The purpose

of this letter to notify you that your suspension from yow position as Matliem.atics faculty at Phoenix

College will begin on March I, 2014 and end on May ]5, 2015. Your teaching responsibilities and pay

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

Having sought the advice of the Genera] Counsel as required by section 3.113 of the 1Z~P, X 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 T have the authority to suspend your employment

without pay.

Also under the terms of subsection 3.113, the interim Vice Chancellor for Human Resources will offer to

consult with you (and the Faculty Association President, if you choose) concerning the rationale for this

decision. If you accept his invitation, he will deliver this notice and attachment after the meetinb. If you

decline your opportunity to consult with him, he will have the decision delivered to you in accordance

with the policy.

You may vohmtarily refire from yow- position in lieu of this suspension without pay. If you elect Yo do

so, you will remain on paid administrative leave and be paid t1~roLigh May 9, 2014.

Sincerely,

~~

Rufus GIasper, Ph.D., CP~1

ChanceDo

`~` C~z~--

~"~

Lee Combs

General Legal Counsel

cc: Dr. Anna Solley

Mr. Jim Bowers

T n coli<<ge; ar~d fzu~ skill centers dedica,e:l fo sf uder! success.

Chandler-Gilbert I ~strelia hhountain { Gate4Vay I Glendale I ti1esa 1 Paradise Valley I f'thoenix

Rio Salado I Scott ;dale I South ,~tountair I AAarir.nm Skill ('ontvr I c„ntr,bv~~t c~~n r~.,i~,.

Case 2:15-cv-01759-NVW Document 73-7 Filed 03/03/17 Page 32 of 44
m a R i c o p ~+ I Rufus Clasper C O id M U N{ T Y 

COLL~GES~ Chancellor

2411 W, l~ih Street, Tempe, Arizona 85281-b942 7X80.731.8100 F 480.731.812fJ r.glasper@domail.maricopa.edu

February 10, 2014

Dr. Cleopatria Martinez

703 0 N. Z 1 S` Street

Phoenix, AZ 85020

Re: Statement of~Cl~ar~es

Based upon the f ndings of the hearing committee which are attached to this statement, and the record of

their proceedings, X have determined as follows:

In teaching your Phoenix College mathematics students, yon did not use a textbook. Instead, you prepared

your orvn course materials you called your "]echire notes," copied thez~a on 1'hoenis College equipment

and flt College e;cpense, and distributed them to your students without cla~urge. Tn pxeparin~ your notes,

you copied problems from copyright protected textbooks and znserted them into your lecture notes

'without attribution tq or permission of, the copyright holders.

Tn early 2010, Phoenix College discovered that you may have exposed MCCCD'to }iability for copyright

infringement, notif ed you of thz concerns, and provided training and Iebal counsel. To protect the

College from the risk of liabilzty, in April 2010 Pzesident Solley restricted your copying privileges,

allowing only those copy projects approved by your department chvr. Yon attempted to bypass these

restrictions. The chair filed a complaint that tivas refereed to an administrative evaluation team for

investigation. The team, including your o~vn appouatee, iulanimously concluded that your lech~re notes

violated copyright and that you had failed to follo~v Presidene Solley's direction.

President Solley considered this history, and on DecemUer 10, 2010 imposed a stricter restriction in

accordance with the RFP. She du•ected you to use only course matexials approved by the department, that

were available in the bookstore for sale to tl~e students, and thaf were authored by persons other than

yourself. She also required that you provide proper attribution of authorship of the materials by others

and show evidence that you had purchased the materials or othervrise received permission to use diem

From the aufl~or. Size restricted your authority to copy to materials approved by your department chair

after two days' notice and written proof that you had permission of the author to copy t}~e materials_

In concludanb her directive; Dr. Solley stated, "This direction is intended to communicate job duties to

you within'the meaning of Goveniing Board employment standard A~1.3. In accoz'dance with that section

of the All Fmp.loyzne~rt Policy Ivlanual, willful azad intentional violation of t]iese instructions will be

considered grounds for disciplinary action, tip to and including dismissal."

Despite MCCCD's frequent discussions wit}i you regarding the importance of complying with copyright

lativs and the December 9, 2Q10 directive, ~rou continued to attempt to ignore the

directive, tit the beginT~in ; of the 1~ all 2U 12 Semester, you informed your shidents that they were not

required to purchase a course textbook and that you tivould provide them wii~~ your o~m course materials

in lieu of a te:~tbook_ In violation of President Solley's December, 2010 directive, you made copies at a

local Staples store oI coiuse materials that had not been approved by your department chair, and

distributed fliem to your sluderats for $11 per copy, payable directly to you. This distribution violated Dr.

Solley's directive.

T n colleges and huo ,kill centers der]icated to st~rclerd success.

Chandler-Gilb_r[ 1 Estrella iviountrin 1 Gate4Vay I Glendale I Mesa I Paradise Valley I Phoenix

Case 2:15-cv-01759-NVW Document 73-7 Filed 03/03/17 Page 33 of 44
Page 2

You decided unilaterally that no district policy required you to comply with the job duties communicated

to you in writing by Dr. Solley, so you violated them. However, her directive was issued under section

3.7.4 of the R~'P.. This section authorizes a president to take "any appropriate action" a€~er receiving the

results of the administrative review. In considering the appropriate action, Dr. Solley relied on the advice

of expert counsel to assess the risk of liability represented by your behavxpx, on your documented history

of evasion of her prior efforts to protect NICCCD, and tlae unanimous report of the administrative

evaluation te<~un. You <!id not ale a timely appeal or grievance seeking revietiv o:f this directive.

An additioz~ai concern arose after a student brou;ht the copying to PC's attention, complaining that you

did not provide receipts for the matezial charges. MCCCD Administrative Re~uladon 1.12. states as

follows:

"1.122 Authorization

Prior to participating i~~ the sale of products or services, Revenue and Expenditure ca#egories must be

included in a prod ~am's budget, and approved by the Governing hoard during the annual budget adoption

process, or'as legally changed during a fiscal year.

1.12.3 ]~ees

1~ ees 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 coiuse materials charge tivas not included as the adopted budget or

pre-approved by the Governing Bo~v-d. Dr. Solley therefore issued a corrective action that directed you to

issue refunds to the students for the unauthorized charbe, ~S.'ou zefused, and offered no explanation or

justification of your decision to the hearing committee. The hearing cozx~mittee found your failure to

comply with the corrective action was in violation of Administrative Revelation 6,7.1 and Administrative

Regulation 6.73.

"I~herefore, for purposes of RF1' Section 3.13, this letter will serve as a statement of charges that you are in

violation olEldministr<rtive Regulation 6.7.1 and Administrative Regulation 6.73. In accordance tixrith

these re ;t~lations, disciplinary action up to and inc117ding termination is warranted. I accept the hearing

committee's recommendation that you should not be dismissed from employment. IZowever, I believe

saspensic~n without pay for a substantial time is the appropriate sazzction.

Sincerely,

~~

Ttt~ii~s Crlasper, Ph.11. CPA

Chancellor

Case 2:15-cv-01759-NVW Document 73-7 Filed 03/03/17 Page 34 of 44
BEFORE THE GO~VERNTNG BOARD OF THE

MARICOT'A COUNTY COb7N1tlNITY COLLEGE DISTRICT '

iVfAI2ICOPA COUNTY COMi~tUNlTY )

COLLEGE DISTRICT, ) FEARING CQMMITTEE

v, ) FINDINGS OF FACT, CONCLUSIONS

• ) OF LAW, AND R.ECOMMENDAT]ON

~ DR, CLEOPATRIA MARTINEZ }

Pursuant to the October tb, 2013 Scheduling Ordar, having reviewed a31 of the parties'

pleadings and exhibits anti conducting a hearing ~n November 18, 2013, the Hearing Committee

~ (by majority vote) hereby submits tha Following Fsndings of F'aet, Conclusions of Law and

Recommendation.

~ ~INDYNGS OT FACT

1. after having taught mathematics full-time for ten years at Denver Community

College, Dr. Cleopa4-ia Martinez moved to Arizona end started teaching mathematics full-time at

' Scottsdale Community College on January y, 1985. ;'

2. Dx. Nlaztinez voluntarily Cransferxed to Phoenix College ("PC") in ]99S and has

,; been teaching mathematics there dull-time ever since.

~~ 3. ~ Dr. Martinez ~l~eted to voluntarily transfer to PC because iherc: wcre very few

~ minority students attending Scottsdale Community College, and she ~.vanted to use her bilingual

j education skills in the mathematics etassroam to better educate We large number of minority

students attending PC.

4. Dr. iviartinez tivas elected by her colle~ues to serve as the Chairperson of the

Mathematics Deportment of PC fz~m 20Q2 to 2045.

j` 5. In early 2D10, PC discovered khat Dr. Cleopatria M~-tinez may have exposed

MCCCD to potential liability for copyright infringement.

,':. 6. Dr. lviarCinez testified that, during her twenty-eight years of teaching mathematics

in the I~riCCCD system, she and her colleagues in die M~diemaEics Departrnents of both

Scottsdale Community College and' PC routinely borrowed mathematics problems from other

m~t}~ematicians to i~se in their siudenE handouts for educational purposes on a not for profit basis.

7. Dr. Martinez testified, without rebuttal, that this borrowing of mat}~ernatics

problems is a longstanding, widespread custom throughout the District and academia at large.

8. Instead of requiring her mathematics students 10 purchase textbooks, Dr. lbiartinez

prepared her own course materials which she called her "Lecture i~7otes" and distributed them to

;~

~~ ~ossa~ -iCase 2:15-cv-01759-NVW Document 73-7 Filed 03/03/17 Page 35 of 44
her students.. MCCCD Exhibit List # 4-5 (Martinez Depo„ pp. 77:17-78:15, IQ6:16-108:16,

121;25-140:13, ]32_i6-}37:25).

i 9. Dr. Martinez read the Copyright Act of 1976 And believed thaf it authorized her to

~~ Use small partions of other scholars' tivork under the "Fair Use" doctrine because she was using it

' onJy for classroom teaching purposes on a not for profit basis and her use of the material did not

_..

undermine the potential muket for the other scholar's work.

10. ..Per the "Fair Use" doctrine of the Copyright Aot, the `use of a copyzighted tivork .

..for purposes such as criticism, comment, Haws reporting, teaching (including muhiple copies

for classroom use), scholaxship; ox research, is not an infi-ingement of copyright: ' 17 [I.S.C. §

1 D7.

t I . Dr. Martinez copied problems fmm c.opyri~ht protected textbooks and insetted ..

them into her course materials. MCCCD Exhibit List # 4-S (,Martinez Depo., pp. 106:16-

108:16).

12. Dr. Martinez, inher$asic 11.rit}unetic (MAT482) course, copied problems directly

from a copyrighted textbook entitled "Basic Mathematics" and inserted them into her "MA.T 082

Basic Arithmetic Spring 2010" couxse.materiuls which she distributed to students. MCCCD

'• Extilbit List # 20 (~u13-Sized excerpted Comparison). She"did not'seek or obtain permission

from the copyright holder.

~... .

13. ; Dr. Martinez also .copied problems directly from the Sullivan & Sulliv~nn

,,, "Precalculus" textbook and inserted them info her "IvSA.Tf•82 Trigonflmetry Spring 20I0" course

materials. MCCGD Exhibit T.ist ~} 22 (Folk-3ized Excerpted Comparison}, She did not seek or

obtain permission $om the copyright holder.

i

14. Dr. Martinez did not require her students to purchase textbooks in her Spring

i~SATO$2 Course. MCCCD Exhibit List # 18 (email from Dr. Ivlartinez stniing "I indicated in my

syllabus that, instead of a published te~ctbonk, I was using leeiure notes in m~ MATD32 class.")

15. Dr. Martinez did not require her students to piu-chase textbooks in her Spring

IviA7'182 Course. See Dr. Martinet's hearing testimony (conceding that students were not

required to pEirchase a textbook in her Spring 2010 MA7'I $2 course).'

7 6. On or around January 12, 2010, MCCCD's Vice President of Academic Services,

Ronnie Elliot, sent Dr. Martinez an email notifying her that there were alleged copyright related

problerns with the materials she had printed for the Fall 2009 and Spring 2010 semesters.

tiICCCI~ Exnibii List # 23 {7anuary ]2, 2010 email). The materials in question ~vex~ packets of

cotuse materials for Dr. Martinet's MA.T182 and MAT187 courses and contained mathematics

problems and gapiis that tivere taken from copyrighted textbooks. MCCCD E:chibit List # l 1

(Ronnie E]IiQt Declaration, ¶¶8-9); MCCCD Exhibit Lisi # 16 (N1AT182 cowse packet);

NICCCD Gxhi6it List ~r 7 (Sean GairSson October 28, 20l Q Memorandum}.

17. Dr. Mnriinez used three of the four packets of "lecttire notes" in the Spring of

201D in two pre-calculus classes. See District Exhibit 6, parts I-3.

406681 -2-

Case 2:15-cv-01759-NVW Document 73-7 Filed 03/03/17 Page 36 of 44
18. 'Ihe MCCCD administration, following Vice President EllioYs email, repeatedly

explAined its copyright concerns to Dr. Martinez And asked Dr. Martinez to remove any

copyright pratecied mathematics problems from her materials. See Kakar Nearing Testimony.

19, . On. January 25, 2010, dice President Elliot sent br. Martinez an email outlining

MCC~D's concerns regarding Dr. Martinez's potential copyright infringement. MCCCD

Exhibit List #-2h (January Zb, 2D10 email).

20. ' On January 2S, 210, MCCCD in-house-counsel Margaret McConnell discussed

copyright camptiance with Dr. Martinez telephanicaily. 1v~CCCD Exhbit List # 25 (January 28,

2010 email).

21. ' Lh. Martinez did not. benefit from the multiple MCCCD copyright informatian

sesszons noted nbave.

. 22. ~ PC's own expert witness, Sean Garrison, testified that under the "Fair Use"

doctrine, someone could lawfully copy from a copyrighted textbook withouE either using or

purchasing the textbook.

23. On February 5, 2010, Vice President of Academic Affairs Casaazdra Kak~r,

Interim Vice President of Adminisssatzve Services Paul DeRose, and Dr. Mttrtinez met to discuss

Dr. Martinet's alleged misuse of copyrighted materials. MCCCD Exhibit List tt 26 (February

12, 201 D email).

24. Dr. Martinez has not used any of the foux sets of "lecture notes" since the Spring

Q`~~ of 2010 when PC first raised its concerns regarding the~notes,

2S. ~ On Apri! l S, 2D10, PC Librarian Ann Roselle conducted a personalized one-onone eopyriglit training session with Dr. Martinez. MCCCD Exhibit List # 28 (Copyrig}it

PowerPoint Presentation). See also, Kakar Hearing Testimony.

26. When Dr, Martinez met with the librarian; Ehe librarian told Dr. MnrEinez that Dr.

Martinez knew as much about copyright law as she did. See Martinez Hearing Testimony.

27. Following die revocation of Dr. Nlartinex.'s copyzng privileges, Tar. Martinez was

,required to submit her copy requests to Mathematics Department Chairperson Mr. 5ueyoshi so

that Mr. 5ueyoshi cotald review her materials for gossibie copyright violations prior to copying

and distribution to students. MCCCD Exhibit List # 8 (Apri12, 2010 Directive).

28. Dr. Martinez sought and obtained a form of written permission from the publisher

of the textbook, Sullivan & Sullivan's "Precalculus," to copy materials from their book after PC

accused her of violating eapyright law.

29. ~ On or around April 19, 201 Q, br. Martinez attempted to bypass the copying

restrictions by having an adjunct mathematics Professor, Johnny Santellan, make 24 sets of

copies of her "T_,ecture T~iotes" for distribution to her mathematics students without obtaining

prior approval from the Ivlatbematics Departmenk Chairperson. MCCCD E~ibit List # 12

(Stieyoshi Decl., ¶9); IviCCCD Exhibit List # ~-S (Markinez Depo., pp. 223:1 I-224:21).

~~,

4D66E31 -3-

Case 2:15-cv-01759-NVW Document 73-7 Filed 03/03/17 Page 37 of 44
,~`~ 30, ~ Because Dr. Martinez did not feel size was able to obtain reliable guidance

regarding copyright complianea fxom the District, she sought aduice from a private intellectual

property attorney xega~ding the issue, Mr. Frederic Bellamy.

31. 'Mr. Bellamy reviewesi the first #wo sets of Dr. Martinet's "lectwe notes". and

concluded that they did not violate copyright ]aw because they fe91 under the "Fair Use" docir'sne.

32. • Mr. Bellamy based his conclusion that Dr. Martinez did not violate copyright law

on the opinion that khe portion of material that Dr. Martinez copied from the Sul]ivan &Sullivan

Pzecaiculus textbook was very smt~ll, thpt she use8 the copied materials exclusively for

educational p~sposes without any profit motive, that the content of the copied material consisted

of mathematics problems that are arguabty not subject to copyright in the first place, and that fhe

smait portion of the textbook that Dr. Martinez copied clid not adversely impoct the potential

market for the textbook.

~ 33. At khe hearing, another lawyer practicing in Ehe area of intellectual property law,

Sean Garrison, testified an behalf of PC. In contrast to Mr. Bellamy, Mr. Garrison testified at ilia

hearing that the first three sets of.Dr. Martinet's lecture notes violated copyright law.

34. Zn cont~asi to his testimony at the hearing of November 18, 2013, in his wrilten

report Mr. Gfzrrison concluded only that the first ti~ree sets of Dr. Martinet's lecture notes

subjected the District "fo a serious risk of a~copyright infringement claim" See District Exhibit

6~ P. 0002.

35. MCCCI~ invited Dr, Martinez to a copyright workshop that was held on Marsh 1,

v f 20 ] 0 at PC. I?r. Martinez chose not to attend the workshpp. MCCCD B~chibit List # 10 (Solley

Dacl., ¶11). .

~ 36. ~ PC President Anna Solley, on December 9, 2010, concluded that Dr. Maxtinez's

alleged misconduct posed an unacceptable Icgal risk of a copyright infringement claim and

imposed restricrions on Dr. ivlartinez's photocopying privileges. MCCCD B~ibit List # 10

(5olley Decl.; ¶12}..

37. MCCCD sought a legal opinion from an outside copyright expert, attorney Sean

^`" GFurison. MCCCD ~xhibiE List #1~ ]0 (Soliey 17ec1., !( lq); MCCCD Exhibit List # 7 (Sean

Garrison October 28, 2010 Ivlemo).

38. According io 3vir. GZn-ison, the third set of "lecture notes" appeared to have 13

mathemakicsproblems copied from two other mathematics textbooks.

39. ~ Mr. Garrison testified that he was cerfain that Dr. l~lartinez has committed

copyright infringement. See Garrison Hearing Testimony. in reaching this conclusion, Mr.

Garrison revieti~ed thousands of pages of materials including nearly 300 pages of I?r. Martinet's

lecture notes. and three separate copyrighted mathematics textbooks. NiCCCD Exhibit List # 6

(Sean Garrison April l9, 2013 Report); see also Garrison Hearing Testimony.

40. In reliance upon lair. Garrison's recommendations, PC President Anna 5olley

issued a December 9, 2010 directive that imposed further restrictions on Dr. M~irtinez's copying

_ acssai - -4-

Case 2:15-cv-01759-NVW Document 73-7 Filed 03/03/17 Page 38 of 44
privileges. TvICCCD E~ibit List # 9 (December 9, 2030 Tairective); MCCCD Exhibit List # 10

t (Solley Decl., ~JIS). -

' 41. 'The December 9, 201 D Directive prohibited Dr. Martinez from utilizing any

course materials of her own cxeation: MCCCD Exhibit List # 9 (December 9, 2Q10 Directive),

Instead, Dr. 1Vlartinez was rewired to only use course materials that are "approved by the

mathematics department" or that are "available in the bookstore for sale to students and that are

authored by persorts other than jDr. Martinez]." MCCCD Exhibit T.ist # 9 {December 9, 201D

birecrive).

~, 42. The December 9, 2010 Directive further required Dr. Martinez to submit her

!~ photocopy requests ro the Ivlathematics Department Chair for his approval. MCCCD Exhibit

List # 9 (December 9, 20] 0 Directive).

~ 43. Despite MCCCD's frequent discussions with Dr. Martinez regarding the

importance of complying tivith copyright laws and the beeember 9, 2010 Directive, Dr. Martinez

continued to attempt to ignore the directive. See Kakar Hearing Testimony.

j ~ 44. At the beginning of the ra112012 semester {on or about August 21-23, 20.12), Dr.

Martinez in#~ormed her students that they were not required to pwohase a course textbook and

that she would provide them with her own course materials in lieu of a textbook, MCCCD

E~ibit List # 4-5 (Martine` Depo., pp. 232:19-233:2].

:,F:.

j' 45. Tn fall of 20]2, Dr, Martinez sought to have her Iechue notes photocopied off

campus at a nearby Staples store. This practice is inconsistent vvit}z the December 9; 2010

Directive. MCCCD Exhibit List # ~9 (December 9, 201Q Directive); MCCCD E~ibit List # 9-S

{NTurtinez Depo., pp. 232:3 9-233:21 }.

46, Dr. Martinez did not-submit her Fa[1 2012 materials t~ Mathematics DeparUnent

Chairperson Mr. Sueyoshi for approval.. MCCCD ExhibiE List # ~-5 (Martinez Depo., pp.

232:19-233:21).

47. Dr. Martinez made copies of her coiu-se materials at an off-campus Staples store

and distributed them to students Por $1 I per cgpy. MCCCD Exhibit List # 4-5 (Martinez Depo.,

pp.232:19-233:21). .

48. The $ll course malerial fee was pi~id clirectly io Dr. Martinez by students.

MCCCD E:thibit List # 4-5 {Martinez Depo., pp.232:19-233:21).

49. ~ PC accused Dr. Martinez of violating the District's "cash handling" rules by

distributing Ehese course materials to her students if the students reimbursed her for her out-of

pocket copying costs.

5Q. PC subsegitendy claimed chat Dr. Ivfartinez violated the District's "cash handling°

policies by seeking reimbursement for the copies.

51. NICCCD's policies prohibit instructors from having "any financial interest in or

receiving] compensation iron the sale of any unpublished instructiona3 materials required or

~~

A06681 -5-

Case 2:15-cv-01759-NVW Document 73-7 Filed 03/03/17 Page 39 of 44
suggested for. a class that the instructor tenches." MCCCD Exhibit List # 41 (Residential Faculty

Policies, 3,2.4).). -

S2. ~ Dr. Martinez failed to follow the protocol set forth in the December 9, 2010

Directive in copying her Fail 2022 course materists. MCCCD Exhibit List # 9 (L?ecember 9,

2010 Directive)'; MCCCD E~chibit List # 4-5 (Mar#inez Depo., pp, 232:19-233:21).

53. Dr. Martinez distributed caursa materials directly to shtdents in her Fal] 2012

MATT S 1 class. IvICCCD Exhibit T~ist # M5 (Martinez Depo. pp.232:19-233:21).

~4. ~ The MCCCD Administration learned of Dr. Martinez's unauthorized distribution

• of course materials to students after one of Dr. Martinet's MAT151 students complained to

Mathematics Department Chairperson ~Sr. Sueyoshi. The student corriplained that Dr. Martinez

refused to pxovide her with a receipt for the purchased course materiAls. See KakFzr Hearing

Testimony.

S5. Upon learning that Dr. Martinez had distzibuTed course materials to students

• allegedly in violation of MCCCD's cash handling policy, President Solley instructed Maztfraez to

immediately issue refunds to her students via personal check. 1~SCCCb Exhibit List # 3 {October

18, 2012 Counseling Notice); see also Kakar Hearing Testimony.

56. Os~ or around October 18, 2012, President Solley and Dr. Kakar met with Dr.

;;-0 . Martinez to explain; the seriousness of Dr. Martinet's alleged cash handling violation. MCCCD

Exhibit List #f 3 (October l8, 2412•Counseling Notice); see also Kakar Nearing Testimony, 7n

addition, President Solley and Dr. Kakar prepared a wrifien counseling memo dated October 18

'' ~ 2010 fox Dr. Martinez regarding her alleged violation of cash handling rules. Dr. Martinez was

provided wit} a copy of tine 4ctobcr 18,.2010 counseling notice and President Soliey proceeded

to expiQin to Dr, Martinez the seriousness of the alleged cash handling violations and the

requirement that Dr. Martinez issue reimbursements to her students. MCCCD E~ibit List # 3

(~etober 18, 2012 Counseling Notice); see also Kakar Tearing Testimony.

S7. Sevazal months later, on or around 7anuary 9, 2013, Dr. T~akar lenmed that most

(if not all) students had not yet received refunds from the Dr. Mnrtinez. MCCCD Exhibit List #

39 (various emttils regarding student refunds). As a result, l~r, Kakar instructed Dr. Martinez to

provide copies of refund checks by January 18, 2013. IYiCCCD Exhibit ~,ist # 39 (various emails

regarding student refunds).

58. Dr. Martinez failed to produce a single refund check by the 7anuary 18, 2013

deadline, MCCCD E:chibit List # 39 ('various emails regarding student refunds):

59. br. Martinez did not think that she had violated any District rule in reference to

the copies. Therefore, she declined to folloly the December 9, 2010 order because she believed

she wz~s not regaared #o do so under any District rule.

60. At the November. i 8, 2~ 13 hearing, I~r. Martinez did not provide any explanation

for her refusal to comply with the October 1 S, 2012 and January 9, 2013 directives to issue

_ reftuids to her students, 5~e Martinez T-iearing Testimony.

~~ ~ ' ~oesai ~ -6-

Case 2:15-cv-01759-NVW Document 73-7 Filed 03/03/17 Page 40 of 44
~.- 6l. At the hearing Dr. Martinez testified that she had made a "misialce" and, in

retrospect, should have complied with Pcesidznt Solley's insd-uctions. See Martinez Hearing

~ '7'esiimany.

! 62. •On or around August 9, 2013, MCCCD Chancellor Rufus Clasper sent Dr,

Maitinez a letter informing her that MCCCD was proceeding tivith termination proceedings.

~•` Inciuded with"this )etter was a statement of.ehargcs that summarized the particular violations Dr.

Ivlart3nez hac3 been charged with (hereinaf3er referred to as "Statement of Charges:') MCCCD

Exhibit J.isf ~ J (Statement of Charges}.

.. C~iYCLUSION~

-~:f~ ~ 63, PC failed to carry its bwden of proof relating to .'violation of MCCCD's cash

handling rules found in MCCCD Administrative Ttegulations 1.17, violation of Residential

• Po7icy Manua°I 3.2,E (relating to financial interests in t7npublished materials), violation of U.S.

Copyright L1w and Fair use guidelines, and violation of MCCCD Administrative T2egulations

3.2.E and 32.5 related io copyright regulations.

64. Notwithstanding their education, their experience, and their good faith, Mr.

Be~Iamy And Mr, Garzison disagreed as to whether or not Dr. Martinez violated copyright law.

Therefore, it is incAnclusi~ve as to whether Dr. Markinez intentionally and/or inadvertently

violated federal copyright law.

65. It is inconclusive as to whether ar not Dr. Martinez violated the "cash handling"

policies of MCCCD.

66, Dr. Martinez. willfully and inieniionally failed to follow instructions that were

~, communicated io her when she failed to issue'refiinds to students as directed by President Solley.

- 67. Dr. Martinez conceded that she never complied with President Sollay's clear

.. dircckive to issue refunds to her students. Although Dr. Martinez now regrets her decision not to

comply with .Presidenf Solley's directive, she has never claimed that she did not understand the

~,. instructions or that the instructions were beyond the scope of management's authority. Viewed

in light of these facts, Martinez's claim that she "made a mistake" is an admission of willful

instibordinatiori.

68, By failing to comply with President SolIey's directive to issue refunds to her

students, Dr. 1VTartinez violated 1~TCCCD Administrative Regulation 6.7.1 which prohibits the

"jwjillfu! and intentional violation of any...MCCCD administra~va regulation that affects the

employee's ability to perform his or.her job."

69. By failing to comply with President Soiey's directive to issue refunds to students,

Dr. Martinez violated MCCCD Administrative Regulation 6.73 which prohibits the "[w]311fia1

~v-~d intentional failure to perf~zm job duties that have first been communicated to an employee

and are within the employees scope of employment."

/J/

aossat -7-

Case 2:15-cv-01759-NVW Document 73-7 Filed 03/03/17 Page 41 of 44
z

:,

'A

~.

I2~COI44341ENDATI+DN

'7Q_ ~4Ye h~T~by recommend that the .Cioveming Boa d deny Rtesident Solley.•'s

terxnin'atron.request and:all'o~u ~lr: ltir~artinez to:continue_her. MG'GCD employrr~ezit.

71: Per iviCC.CD AdirzinisErative .Regulation 6.7 indicating .thaF 'violarion o~ and

E3npiaxmen~ Standareiss ~icoinstifutes .grounds fdr. disoipIii~iary- aciion, ~irR td [empTiasis'ad'dei3),.aaid

includYs~~ terrriinaticin," we.hereTi}~ reaamme~d that the GovemzngBo~7d tetaitl:DP..Markine~•.

~assst

IhXs orc3eted so,.•axlvles~; ~zon~, t}iis nth d~.y ofDeceinl~er; 20:13,..

I)r. I4e ~. C`i'd p~

Cli'airp~rsan~

(fin Behal~of 'the Heariu~;CoininitC~e,

Dr.NoraReyes and Di:•Cax3.os.~aiYe:

_g:.

Case 2:15-cv-01759-NVW Document 73-7 Filed 03/03/17 Page 42 of 44
3. ~ 0.3.

3,x,0.4.

3.10,5.

3.1 Q.2.1.

Nofi Inter than March 15C for all members in Probationary status. Eiy

October 1~` of the fourth and fifrh academic years, the Probationary

faculty member should be advised in writing, by the Department/Division

Chair or appropriate Vice President, or Vice President's designee of any

deficiencies which may, if uncorrected, result 3n non-renewal of contract,

and the Probationary member shall have the remainder of the academic

year to address said deficiencies.

3,1.2.2.

Fifth-year Probationary members will be notified In writing of any

deficiencies arising after October 1~`. The probafilonary period may be

extended one additional semester for the affected Probationary member

per Section 1.2. Failure of the Probationary member to correcfi said

deficiencies in the additional semester will result in their non-renewal at

the end of that semester.

Within fourteen (14) days of the receipt of the Chancellors note of intent. to

recommend nonrene~rral, the member shalt, upon request to the Chancellor, be

orally advised of the reasons that contributed to the derision to recommenel

nonrenewal of employment. Such advisement shat{ be given by khe appropriate

College President within fourteen (14} days of receipt of the faculty member's

written request.

~hlikhin fourteen (14) days of the College Presidenk's adv(sement of the reasons

for nonrenewal, the Chancellor shall honor the Faculty member's written request

to the Chancellor to confirm, in writing, the reasons given in advisement ~of

nonrenawal. Such written confirmakion shall be delivered to the member's place

of residence via certified mail, registered mail, or persgnal service within fourteen

(14) days of the Chancegor's receipt of the request.

The process referenced here above.shall be completed prior to any nonrenewa!

recommendation to the Governing Board, for action prior to April 30`h.

3.11. Suspension of a Faculty Member

3.11.7.

3.1x.2.

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

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

immediate{y suspend the Faculty member and give notice of suspension. At the

option of the Faculty member, the MCCCD Faculty Association President wil! be

notified of this action.

The notice of suspension shall be in writing and be served upon the Faculty

member, personally or by U.S. (registered or certified) mail, addressed to the

Facuib/member at his/her place of residence as recorded in the MCCCD records.

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Case 2:15-cv-01759-NVW Document 73-7 Filed 03/03/17 Page 43 of 44
3.11.3.

Any Faculty member who has been suspended pursuant to this Section will

normally be paid his/her regular salary during the period or" suspension. A

suspension without pay will occur only upon advice of General Counsel. If

payment Is ko be withheld, the Vice Chancellor of Human Resources will first

consult with and advise the member and, at the option of the Faculty member,

the Faculty Association President regarding the rationale for that action.

3.52. Administrative Leaves of Absence

3.].2.7.. Criminal Complaint

3.12.1.1.

If a Faculty memBer is charged by criminal complaint, information, or

indictment with any criminal .offense, which would be cause for dismissal,

the Chancellor or designee may immed(ately place the member on

compulsory leave of absence for a period of time extending for not mare

than ten (10) days a~Cer the date of entry of judgment in the

proceedings.

3.12,1.2.

Pay during this period wilt be based on the same consideration as in

Section 3.13.3.

3.12.2. Corr►plaints—Other Than Criminal

3.12.2.1.

The Vice Chancellor of Human Resources may, if (t is appropriafie, place a

Faculty member on paid administrative Leave of absence. At the option

bf [he Faculty member, the MCCCD Faculiy Associatforl President will be

advised.

3.12.2.2.

Pay during this period will be based on the same consideration as in

Section 3.11.3.

3.13. Faculty Member bismissal—Probationary and Appointive

A Faculty member who is recommended, by the College President, through the

Chancellor, to the Governing board, for dismissal shall have access to the following dueprocess procedures.

3.].3.i.

A written statement of charges, formulated by the College President, shall be

forwarded to the Vice Chancellor of Numan Resources. After re~iiew of the

charges, the Vice Chancellor, in consultation with the NICCCD Legal Once, may

recommend, to the Chancellor, that there exists prima facie cause for the

dismissal of a. Faculty member. ll~e Chancellor shall inform the Governing Boartl

in tivriting, wish a copy of the recommendation being sent (U.S. certified or

registered mail) to the Faculty member at his/tier place of residence as recorded,

in tt~e MCCCD records. The Vice Chancellor's recommendation.wi(I give notice to

the Chancellor, Governing Board, and the Faculty member of the intention to

formally recommend dismissal, which sha(I not be sooner than thirty (30) days

from the date of the letter, nor later than tt~e end of the current academic year.

RFPPolicy Manual -23-

Effective SeptemCer 1, 2013

Case 2:15-cv-01759-NVW Document 73-7 Filed 03/03/17 Page 44 of 44