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UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

Cleopatria Martinez,

Plaintiff,

v.

Maricopa County Community College District; 

et al., 

Defendants.

No. CV 15-01759-NVW

DEFENDANTS’ MEMORANDUM OF 

POINTS & AUTHORITIES IN 

SUPPORT OF ITS NOTICE OF 

MOTION AND MOTION FOR 

SUMMARY JUDGMENT

[FED. R. CIV. P. 56]

(Oral Argument Requested)

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Pavneet Singh Uppal, SBN 016805

Shayna H. Balch, SBN 024852

FISHER & PHILLIPS LLP

3200 N. Central Ave., Suite 805

Phoenix, Arizona 85012-2425

Telephone: (602) 281-3400

Fax: (602) 281-3401

puppal@fisherphillips.com

sbalch@fisherphillips.com

Attorneys for Defendants

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MEMORANDUM OF POINTS AND AUTHORITIES

I. INTRODUCTION

Plaintiff is a Residential Faculty Member employed as a math instructor by MCCCD at 

Phoenix College. In 2010 Defendants learned that Plaintiff was exposing MCCCD to a substantial 

risk of copyright infringement. In response to this threat, MCCCD imposed copy restrictions on

Plaintiff in order to safeguard against potential copyright infringement claims. Unhappy with these 

restrictions, Plaintiff refused to comply and made repeated attempts to bypass the restrictions. Most 

notably, in the fall of 2012, Plaintiff made copies of course materials at an off-campus store and sold 

them directly to students. After being notified of Plaintiff’s behavior by one of herstudents, MCCCD 

concluded that Plaintiff’s actions violated MCCCD’s cash handling policies set forth in MCCCD’s 

Residential Faculty Policy Manual (“RFP Manual”). 

Specifically, the cash handling policy prohibits unauthorized faculty members from receiving 

compensation for the sale of instructional materials to students. Accordingly, MCCCD instructed 

Plaintiff in writing to immediately issue refunds to the studentsto whomshe had sold her instructional 

materials. Despite repeated reminders by MCCCD administration, Plaintiff obstinately refused to 

issue the refunds. As a result, disciplinary proceedings were commenced against Plaintiff. After a

full day evidentiary hearing at which Plaintiff was represented by counsel, the Hearing Committee 

concluded that Plaintiff had engaged in “willful insubordination” and “willfully and intentionally 

failed to follow instructions that were communicated” to her by the President of Phoenix College. 

These findings were reduced to writing in the Hearing Committee’s binding Findings of Fact and 

Conclusions of Law. 

Although MCCCD had sought to terminate the Plaintiff for her acts of willful insubordination, 

the Hearing Committee declined to recommend termination in light of Plaintiff’s nearly 30 years of 

service at MCCCD. The Hearing Committee did, however, inform MCCCD Chancellor Glasperthat 

an unpaid suspension was appropriate and necessary to address Plaintiff’s misconduct. After 

conferring with the Hearing Committee regarding an approved disciplinary response, Chancellor 

Glasper suspended Plaintiff for 14 months without pay. At the time of Plaintiff’s suspension, Plaintiff 

still had not issued the ordered refunds. 

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Following the completion of her suspension, Plaintiff returned to work at Phoenix College in 

the fall of 2015. It is important to note that to this day, roughly four-and-one-half years later, Plaintiff 

has remained insubordinate and refused to issue refunds to the affected students. 

In the current action, Plaintiff argues that her 14-month-suspension violated her due process 

rights to liberty and property. In fact, Plaintiff received all the process which she was due including

full notice and an opportunity to be heard, multiple meetings with MCCCD administration regarding 

the charges against her, and a full day evidentiary hearing. In addition, Plaintiff submitted at least five

letters to the Governing Board seeking reversal of her suspension and even personally appeared to 

argue her case before the Governing Board on two occasions. Simply put, Plaintiff’s claims that she 

was somehow denied due process are without merit and must be dismissed. 

II. FACTUAL BACKGROUND

Plaintiff began working at Phoenix College in 1995 as a math instructor. [DSOF ¶5]. In early 

2010, Phoenix College (one of ten community colleges within MCCCD) discovered that Plaintiff had 

exposed MCCCD to a substantial risk of liability for copyright infringement. [DSOF ¶6]. Instead of 

requiring her math students to purchase copyrighted textbooks, Plaintiff prepared her own course 

materials which she distributed to her students free of charge. [DSOF ¶7]. Plaintiff called these course 

materials her “Lecture Notes.” [DSOF ¶7-9]. In preparing these course materials, Plaintiff directly

copied math problems from copyright protected textbooks and inserted them into her course materials. 

She did so without providing attribution to the textbook publishers and/or authors. [DSOF ¶8-9].1 

Once MCCCD discovered Plaintiff’s conduct, administration officials repeatedly explained 

their copyright concerns to Plaintiff. [DSOF ¶10]. Unfortunately, despite repeated counseling 

attempts by MCCCD administration, Plaintiff continued to ignore federal copyright laws. [DSOF 

¶10]. As a result of Plaintiff’s continuing misconduct and the unacceptable legal risk that her actions 

presented, MCCCD imposed restrictions on Plaintiff’s photocopying privileges. [DSOF ¶11]. 

 

1 The fact that Plaintiff engaged in this behavior is not in dispute. Plaintiff testified under oath 

that problems from the copyright protected materials were inserted into her course materials. 

[DSOF ¶9]. Plaintiff’s sole excuse for engaging in this behavior is that she “didn’t know” that 

her conduct violated federal copyright laws and/or that she didn’t see anything wrong with what 

she was doing. [DSOF ¶9]. 

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MCCCD was hopeful that the suspension of Plaintiff’s copy privileges would serve to illustrate the 

seriousness of this matter to Plaintiff, but instead of complying with the newly imposed copy 

restrictions, Plaintiff continued to disregard copyright laws and actually circumvented the copy 

restrictionsthat were put in place. [DSOF ¶12]. 

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

Garrison. Mr. Garrison, who specializes in copyright law, advised MCCCD that “significant portions 

of [Plaintiff’s] Course Materials have been copied from other [copyrighted] sources.” [DSOF ¶13]. 

He further advised MCCCD to cease further distribution or use of Plaintiff’s course materials because 

they presented a “significant risk of [copyright] infringement.” [DSOF ¶13]. Mr. Garrison also 

estimated that MCCCD’s potential exposure to damages for Plaintiff’s copyright infringement could 

be as high as $150,000 per violation. [DSOF ¶13]. Mr. Garrison further opined that because Plaintiff

copied problems from at least three textbooks, MCCCD could face damages of $450,000 plus 

attorneys’ fees and costs. [DSOF ¶13]. In reliance upon Mr. Garrison’s recommendations, Phoenix 

College President Anna Solley issued a directive on December 9, 2010 that imposed further 

restrictions on Plaintiff’s copying privileges. [DSOF ¶14]. Specifically, the December 9, 2010 

Directive prohibited Plaintiff from utilizing any course materials of her own creation. [DSOF ¶14]. 

Instead, Plaintiffwas required to only use course materials that are “approved by the math department” 

or that are “available in the bookstore for sale to students and that are authored by persons other than 

[Plaintiff].” [DSOF ¶14]. The Directive further required Plaintiff to submit her photocopy requests 

to the Math Department Chair for his approval. [DSOF ¶14]. 

Despite MCCCD’s frequent discussions with Plaintiffregarding the importance of complying 

with copyright laws and the imposition of the December 9, 2010 Directive, Plaintiff continually and 

repeatedly attempted to evade the Directive. [DSOF ¶15]. In August of 2012, Plaintiff violated the 

December 9, 2010 Directive by having her materials photocopied off campus at a local Staples store. 

[DSOF ¶15]. Specifically, Plaintiff informed her students that they were not required to purchase a 

course textbook and that she would provide them with course materials in lieu of a textbook. [DSOF 

¶15]. Plaintiff then made copies of her course materials at an off-campus Staples store and required 

students to purchase them from her for $11. [DSOF ¶15]. MCCCD administration concluded that 

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Plaintiff’s actions violated MCCCD’s cash handling policies which prohibit unauthorized faculty 

members from receiving compensation from the sale of instructional materials.2[DSOF ¶15]. 

On or around October 18, 2012, after it was established that Plaintiff had sold the materials 

directly to students, Plaintiff was instructed to immediately issue refunds to her students by personal 

check. [DSOF ¶17]. Several months later on or around January 9, 2013, MCCCD Vice President of 

Academic Affairs Cassandra Kakar learned that students had not yet received refunds from Plaintiff. 

[DSOF ¶17]. As a result, Dr. Kakar instructed Plaintiff to provide copies of the front and back of all 

cashed refund checks by January 18, 2013. [DSOF ¶17]. However, Plaintiff insubordinately failed to 

provide the requested canceled checks. [DSOF ¶17]. 

On March 20, 2013, Plaintiff was notified that a Pre-Disciplinary Conference had been 

scheduled regarding her conduct. [DSOF ¶18]. On or around April 3, 2013, Plaintiff met with 

MCCCD administration to participate in a Pre-Disciplinary Conference with President Solley and 

Vice President Kakar. [DSOF ¶19]. Judy Castellanos and Sheri Klein from the MCCCD District 

Office HR Solutions Center were also present. [DSOF ¶19]. During the meeting, Plaintiff was 

informed of the charges against her and given an opportunity to respond. [DSOF ¶19]. 

Subsequent to the April 3, 2013 meeting, President Solley and Vice President Kakar sought 

to terminate Plaintiff’s employment due to her unacceptable misconduct and Plaintiff was provided 

with an August 9, 2013 Statement of Charges regarding her proposed dismissal. [DSOF ¶20]. 

Plaintiff met with Vice Chancellor of Human Resources Jim Bowers and received a Statement of 

Charges regarding her proposed dismissal of employment (which included a charge of 

insubordination for failing to follow the December 9, 2010 Directive from President Anna Solley). 

[DSOF ¶20]. Upon receipt of the Statement of Charges regarding her proposed dismissal, Plaintiff 

requested an evidentiary hearing, which MCCCD granted. [DSOF ¶21]. 

 

2 Specifically, MCCCD’s policies prohibit instructors from having “any financial interest in or 

receiv[ing] compensation from the sale of any unpublished instructional materials required or 

suggested for a class that the instructor teaches.” [DSOF ¶16]. This prohibition makes perfect sense 

when one considers the position of authority that faculty members hold over their students. Students 

may feel compelled to purchase materials which are required, recommended, or offered by their 

instructors. Similarly, students may feel that their grades could be affected if they decline to purchase 

materials from a faculty member. [DSOF ¶16]

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Plaintiff received her full day evidentiary hearing on November 18, 2013. [DSOF ¶ 22]. 

During the hearing Plaintiff was represented by experienced employment counsel, Stephen Montoya,

and was able to call witnesses, cross examine MCCCD’s witnesses, enter evidence, and offer expert 

testimony. [DSOF ¶22-23]. Following the hearing, the Hearing Committee issued binding Findings 

of Fact and Conclusions of Law. [DSOF ¶24]. The Hearing Committee found that Plaintiff engaged 

in “willful insubordination” and that she “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.” [DSOF ¶24]. Upon receipt of the Hearing Committee’s findings, Chancellor Glasper met 

with the Hearing Committee to inquire about the basis of their conclusions. [DSOF ¶25]. The Hearing 

Committee members explained to Chancellor Glasper that because Plaintiff had been with the District 

for nearly 30 years, they were reluctant to recommend her permanent separation from employment,

but believed a disciplinary action such as an unpaid suspension was appropriate. [DSOF ¶25]. 

In light of the Hearing Committee’s recommendations, Chancellor Glasper prepared a revised 

February 10, 2014 Statement of Charges proposing that Plaintiff be suspended from employment for 

14 months. [DSOF ¶26]. Chancellor Glasper notified Plaintiff, though her counsel, that he had 

decided to suspend Plaintiff. [DSOF ¶26]. Chancellor Glasper also offered Plaintiff the opportunity 

to schedule a meeting with the Vice Chancellor of Human Resources to discuss the rationale for the 

decision. [DSOF ¶26]. Plaintiff accepted the invitation and MCCCD scheduled a meeting between 

Plaintiff and the Vice Chancellor Bowers.

3

[DSOF ¶26]. 

 

3 Plaintiff incorrectly alleged in her Amended Complaint that she was denied due process because her 

Statement of Charges was “backdated to February 10, 2014” and because she was “never given the 

opportunity to respond to the Statement of Charges in writing before she was suspended.” Doc. 14., 

¶¶ 17, 42. The Statement of Charges was originally dated February 10, 2014, with an effective 

suspension date of March 1, 2014. [DSOF ¶27]. MCCCD originally scheduled a meeting between 

Plaintiff and Vice Chancellor of Human Resources Bowers to discuss the Statement of Charges on 

February 25, 2014 – four days before the effective date of the suspension. [DSOF ¶27]. The day 

before the meeting was scheduled to take place, Plaintiff unilaterally canceled the meeting citing a 

“sudden medical issue.” [DSOF ¶27]. She informed MCCCD that the earliest she could meet 

consistent with her attorney’s schedule was Friday, March 7, 2014. [DSOF ¶27]. MCCCD 

accommodated Plaintiff’s request to move her meeting to March 7, 2014, and postponed Plaintiff’s 

suspension by one month to ensure that she received a meeting with the Vice Chancellor prior to the 

suspension taking effect. [DSOF ¶27]. Plaintiff was issued a an Update to Notice of Suspension 

Without Pay dated April 14, 2014 which stated that her revised dates of suspension were April 15, 

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Plaintiff met with Vice Chancellor Bowers on March 7, 2014 to discuss the Statement of 

Charges and her suspension. DSOF ¶28]. During the meeting, Plaintiff was represented by 

experienced employment counsel, was provided with a copy of the Statement of Charges, and was 

afforded an opportunity to respond and voice her concerns. [DSOF ¶28]. It is important to note that 

this second Statement of Charges and meeting with the Vice Chancellor took place after Plaintiff had 

a full day evidentiary hearing on the same issues just months before. Moreover, just days after her 

meeting with Vice Chancellor Bowers, on March 12, 2014, Plaintiff submitted a nine page legal brief 

though her attorneywhich setforth her objections to the suspension and argued that “a fourteen-month 

suspension is the economic equivalent of a dismissal.” [DSOF ¶28]. The legal brief contained more 

than 30 pages of exhibits – including the Hearing Committee’s Findings of Fact and Conclusions of 

Law - and was sent to MCCCD’s Vice Chancellor of Human Resources and all members of the 

Governing Board [DSOF ¶28]. 

Shortly thereafter, and in anticipation of the Governing Board’s March 25, 2014 regularly 

scheduled board meeting, Plaintiff submitted a one-and-one-half page letter to the Governing Board 

objecting to her suspension and asking “the board to intervene in [her] case to rescind the Chancellor’s 

suspension.” [DSOF ¶ 29]. Plaintiff and her counsel each separately spoke before the Governing 

Board in open session. [DSOF ¶29] While addressing the Governing Board, Plaintiff and her counsel 

each advanced the argument that her suspension was improper and that “the chancellor’s fourteen 

month suspension of [Plaintiff] is the functional equivalent of termination from the district.” [DSOF 

¶29]. 

Following the March 25, 2014 Governing Board meeting, Plaintiff submitted at least three

additional letters to the Governing Board outlining her objections to her suspension and her contention 

that a 14-month-suspension was tantamount to a termination of employment. [DSOF ¶¶30-33]. 

Plaintiff also appeared before the Governing Board a second time on October 28, 2014 and argued 

against her suspension. [DSOF ¶34]. But if that were not enough, Plaintiff also had two other 

individuals separately appear before the Governing Board on her behalf and object to her suspension. 

 

2014 to May 15, 2015. [DSOF ¶27]. Plaintiff accepted thisinvitation and met with Vice Chancellor 

Bowers on March 7, 2014. [DSOF ¶27]. 

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[DSOF ¶34]. In the fall of 2015, following the completion of her 14-month-suspension from 

MCCCD, Plaintiff returned to work at Phoenix College. [DSOF ¶35].

II. LEGAL ARGUMENT

Summary judgment is appropriate where there is no genuine issue of material fact and the 

moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Anderson v. Liberty 

Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510 (1986). To defeat Defendants’motion, Plaintiff 

“may not rest upon the mere allegations or denials of her pleading, but ... must set forth specific facts 

showing that there is a genuine issue for trial.” Id. Defendants’motion must be granted if the evidence 

presented by Plaintiff “is merely colorable or is not significantly probative.” Id. at 249 (internal 

citations omitted). Here, Plaintiff has asserted five causes of action against Defendants alleging: (1)

42 U.S.C. § 1983 – Liberty interest against Glasper, (2) 42 U.S.C. § 1983 – Property interest against 

Glasper, (3) 42 U.S.C. § 1983 – Liberty interest against MCCCD, (4) 42 U.S.C. § 1983 – Property

interest against MCCCD, and (5) Declaratory relief against MCCCD. For the reasons set forth below, 

each of these causes of action fail.

A. Plaintiff Was Afforded Complete Due Process and Her § 1983 Claims Must Be 

Dismissed.

To state an actionable due process claim an employee must demonstrate that she was deprived 

of either a liberty or property interest. Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40 (1999). It is 

the plaintiff who bears the burden of proving that her public employer failed to provide due process 

protections. Collyer v. Darling, 98 F.3d 211, 223 (6th Cir. 1996). In the present case, Plaintiff has 

alleged that her procedural due process rights were impaired when she was suspended for fourteen 

months without pay. Plaintiff contends that a 14-month-suspension is tantamount to a termination of 

employment and that she was therefore entitled to the same protections afforded to MCCCD 

Residential Faculty who are permanently separated from employment. Plaintiff’s argument fails for 

multiple reasons. As an initial matter, Plaintiff had no applicable liberty interest entitling her to due 

process. Plaintiff appears to allege liberty interests in future employment with MCCCD and in her 

reputation within the community. However, based on the undisputed facts in this case, and as 

discussed in further detail below, neither of these liberty interests are at issue. Additionally, Plaintiff’s 

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argument that she was not afforded procedural due process before being deprived of her property 

interest in her employment (via a 14 month suspension) is similarly defective. Plaintiff was 

suspended, not terminated, and she received all of the process she was due under MCCCD’s RFP 

Manual. Moreover, even assuming, arguendo, that Plaintiff’s 14-month-suspension was tantamount 

to a termination, she received more than sufficient notice and a meaningful opportunity to be heard as 

required by due process. 

1. Plaintiff Has No Liberty Interests Entitling Her to Due Process 

Protections.

Under due process analysis, a liberty interest “encompasses an individual’s freedom to work 

and earn a living.” Bollow v. Fed.Reserve Bank of San Francisco, 650 F.2d 1093, 1100 (9th Cir.1981), 

cert. denied, 455 U.S. 948, 102 S.Ct. 1449, 71 L.Ed.2d 662 (1982). Here, Plaintiff claims that she has 

actionable liberty interests in future employment with MCCCD and her reputation in the community 

entitling her to due process. However, as set forth below, Plaintiff’s claims are without merit. 

a) Plaintiff Does Not Have a Liberty Interest In Future Employment 

With MCCCD. 

Due process protects a “generalized . . . right to choose one’s field of private employment.” 

Conn v. Gabbert, 526 U.S. 286, 292 (1999) (citing cases involving “a complete prohibition of the 

right to engage in a calling”). Due process does not protect the right of employment with a specific 

employer. Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 573, 92 S.Ct. 2701, 2707 (1972) (due 

process was not implicated because the State had not barred the employee “from all other public 

employment in state universities.”); see, also, Cafeteria & Restaurant Workers Union, Local 473 v. 

McElroy, 367 U.S. 886, 896 (1961) (an employment decision to bar a cook from working at a specific 

military base did not violate the employee’s due process right because the plaintiff “remained free to 

obtain employment. . . with any other employer.”); also Llamas v. Butte Comm. Coll. Dist., 238 F.3d 

1123 (9th Cir. 2001)(“We have consistently held that people do not have liberty interests in a specific 

employer. For example, a federal employee ‘does not possess a liberty interest in her civil service 

career.’”) (citing Clemente v. United States, 766 F.2d 1358, 1365 (9th. Cir. 1985)). 

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Here, as in the cases cited above, Plaintiff was not barred from “all other public employment” 

in community colleges, or even the educational field. Nor was Plaintiff permanently barred from 

employment with MCCCD. To the contrary, Plaintiff’s restriction was limited to a 14-monthsuspension from MCCCD based on her “admission of willful insubordination” after she “willfully 

and intentionally failed to follow instructions that were communicated to her” by Phoenix College 

President Anna Solley. [DSOF ¶24]. Given that Plaintiff was free to work in her chosen occupation 

during her suspension - and even retuned to employment with MCCCD in the fall of 2015 - she was 

not barred from her right to pursue her chosen field of employment. 

b) Plaintiff’s Alleged Liberty Interest in Her Reputation Was Not 

Infringed Because The Charges Against Her Did Not Implicate 

Honesty or Morality.

Plaintiff’s Amended Complaint further alleges that Defendants’ conduct infringed on her 

liberty interest in her reputation in the community. Doc. 14, ¶95, 103-04. However, it is wellestablished that in the employment context, a liberty interest based on reputation is only implicated if 

the charge impairs a reputation for honesty or morality. Bollow, 650 F.2d 1093. “[W]hen the 

government dismisses an individual for reasons that might seriously damage his standing in the 

community, he is entitled to notice and a hearing to clear his name.” Id. at 1100. “To implicate 

constitutional liberty interests, however, the reasons for dismissal must be sufficiently serious to 

‘stigmatize’ or otherwise burden the individual so that he is not able to take advantage of other 

employment opportunities.” Id. at 1101. Moreover, to infringe upon a constitutionally protected 

liberty interest, the charges must be published. Bishop v. Wood, 426 U.S. 341, 96 S.Ct. 2074, 48 

L.Ed.2d 684 (1976). 

Here, Plaintiff has alleged that the “fact of the suspension interfered with [her] ability to 

perform in her profession” and that Defendants “damaged her reputation in her professional 

community.” But a suspension or termination, alone, does not affect a liberty interest. “Charges that 

carry the stigma of moral turpitude” such as dishonesty or immorality “may implicate a liberty interest, 

but charges of incompetence or inability to get along with others do not.” Wheaton v. Webb-Petett, 

931 F.2d 613, 617. Here, Plaintiff was suspended because she “willfully and intentionally failed to 

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follow instructions that were communicated to her” by Phoenix College President Anna Solley. 

[DSOF ¶24]. An allegation of willful insubordination does not implicate honesty or morality. Rather, 

insubordination is a form of failure to perform job duties which is insufficient to give rise to a 

protectable liberty interest. 

c) Even Assuming Arguendo That Plaintiff Had An Actionable 

Liberty Interest, She Was Not Entitled to A Due Process Hearing 

Because The Accuracy of the Charge of Insubordination Was Not 

Contested.

The type of due process afforded to plaintiffs alleging liberty interest deprivations differs from 

the more traditional property interest deprivation analysis. In cases such as the present one where a 

stigmatization liberty interest is advanced, the procedural due process afforded to the aggrieved 

individual is notice and “an opportunity to refute the charge.” Bd. of Regents of State Colls. v. Roth, 

408 U.S. 564, 573, 92 S.Ct. 2701, 2707 (1972). “The purpose of such notice and hearing is to provide 

the person an opportunity to clear his name.” Id. at 573, n. 12, 92 S.Ct., at 2707. Here, the accuracy 

of the insubordination allegation which led to Plaintiff’s 14-month-suspension is not in dispute, so 

Plaintiff was not entitled to a name clearing hearing. 

As set forth above, following MCCCD’s recommendation that Plaintiff be dismissed from 

employment, she received the benefit of a full day evidentiary hearing where she was represented by 

counsel. [DSOF ¶22-23]. At issue in the hearing was Plaintiff’s alleged insubordination for refusing 

to issue refunds in violation of an express directive from Phoenix College President Solley - the very 

same charge that Plaintiff’s suspension was based on. [DSOF ¶18-24]. During the evidentiary 

hearing, Plaintiff testified under oath that despite numerous reminders from college administration, 

she never complied with President Solley’s directive, could provide no excuse or justification for her 

misconduct, conceded that her noncompliance was a “mistake,” and acknowledged that she should 

have complied. [DSOF ¶24]. At the conclusion of the administrative dismissal hearing, the Hearing 

Committee issued its Binding Findings of Fact and Conclusions of Law in which the Hearing 

Committee found that Plaintiff had made “an admission of willful insubordination” by testifying that 

she had “made a mistake” in “willfully and intentionally fail[ing] to follow instructions that were 

communicated to her when she failed to issue refunds to students as directed by President Solley.” 

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[DSOF ¶24]. However, the Hearing Committee recommended against permanent separation from

employment due to Plaintiff’s 30 year employment history with MCCCD. [DSOF ¶25]. Instead, the 

Hearing Committee advised Chancellor Glasper that an unpaid suspension was more appropriate. 

[DSOF ¶25]. In compliance with the MCCCD’s RFP Manual, Chancellor Glasper accepted the

binding Findings of Fact and Conclusions of Law, issued a new Statement of Charges for willful 

insubordination, and imposed an unpaid disciplinary suspension of 14 months. [DSOF ¶26]. Because 

the factual accuracy of the Statement of Charges surrounding Plaintiff’s insubordination is not 

contested, Plaintiff was not entitled to a “name clearing” hearing. Codd v. Velger, 429 U.S. 624, 97 

S.Ct. 882, 51 L.Ed.2d 92 (1977) (“if the hearing mandated by the Due Process Clause is to serve any 

useful purpose, there must be some factual dispute between an employer and a discharged employee 

which has some significant bearing on the employee’s reputation.”); Jones v. Los Angeles Cmty. Coll.

Dist., 702 F.2d 203 (9th Cir. 1983) (noting that due process protections only apply when, among other 

requirements, the accuracy of the charge is contested). 

2. Plaintiff’s Allegation That Her Property Right to Continued 

Employment Was Infringed When She Was Suspended for 14 Months 

Fails as a Matter of Law.

Plaintiff contends that she “had property interests in her contracts and as a tenured professor”

she was denied that property interest without procedural due process. Doc. 14. Specifically, Plaintiff 

alleges that her “suspension without pay for fourteen and a half months amounts to a property 

deprivation sufficient to implicate procedural due process protections” and that her suspension was

the functional equivalent of a termination. Doc. 14, ¶ 49.4 As such, Plaintiff appears to contend that 

 

4 To the extent that Plaintiff’s Amended Complaint can be read as alleging that she was somehow 

denied due process with respect to her August 9, 2013 Statement of Charges, her claim fails as a matter 

of law. Plaintiff received full written notice of the charges against her on March 20, 2013, 2013. 

[DSOF ¶18]. Subsequently, Plaintiff had pre-termination meetings with MCCCD administration as 

well as a full day evidentiary hearing before a hearing committee comprised of her peers. [DSOF 

¶18-23]. Prior to the hearing, Plaintiff submitted full briefing through experienced employment 

counsel. [DSOF ¶22-23]. At the hearing, Plaintiff was similarly represented by counsel who offered

witnesses, cross-examined the District’s witnesses, submitted exhibits, and called an expert witness 

in her defense. [DSOF ¶23]. At the conclusion of the hearing, the Hearing Committee rendered its 

Findings of Fact and Conclusions of Law in which it found Plaintiff to have engaged in “willful 

insubordination” when she “willfully and intentionally failed to follow instructions that were 

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she was entitled to the same type of procedural protections as faculty who are permanently separated 

from employment. Amended Complaint, ¶¶49-50. Specifically, Plaintiff contends that her February 

20, 2014 Statement of Charges deprived her of: (1) “the opportunity to respond to the Statement of 

Charges in writing before she was suspended”; and (2) “failed to allow [her] any opportunity to 

present evidence refuting the new Statement of Charges before a neutral finder-of-fact.” Doc. 14. 

These claims fail because Plaintiff was suspended, not terminated, and she received all the procedures 

she was entitled to. Moreover, even assuming, arguendo, that her suspension was tantamount to a 

termination, she received all the due process to which she was entitled. 

i. Plaintiff Was Suspended, Not Terminated, And Received All The 

Procedures She Was Due.

Plaintiff incorrectly argues that her 14-month-suspension from MCCCD was the functional 

equivalent of a termination. A “termination” is a permanent separation from employment. Indeed, 

even Black’s Law Dictionary defines “termination” as “[t]the act of ending something” and 

“termination of employment” as “[t]he complete severance of an employer-employee relationship.”

BLACK’S LAW DICTIONARY (8th ed. 2004). Here, Plaintiff’s suspension was for a finite duration, it 

was always contemplated that she would return to work after serving the suspension, and Plaintiff did,

in fact,return to work at MCCCD in the fall of 2015. [DSOF ¶35]. Accordingly, even though Plaintiff 

objects to the length of her suspension (which was necessitated by her egregious misconduct) it was 

qualitatively different from a termination. 

Notwithstanding Plaintiff’s arguments to the contrary, her suspension was properly processed 

as a suspension and she received appropriate due process protections. Pursuant to MCCCD’s RFP

Manual, Residential Faulty Members who are suspended are entitled to the receipt of a written 

statement of charges formulated by the MCCCD Chancellor. RFP § 3.11.1. “If payment is to be 

withheld [from a suspended faculty member], the Vice Chancellor of Human Resources will first 

 

communicated to her when she failed to issue refunds to students as directed by President Solley.”

[DSOF ¶24]. Despite the foregoing findings, the Hearing Committee recommended against the 

sanction of termination. [DSOF ¶24]. Simply put, Plaintiff received complete due process 

protections with respect to her August 9, 2013 Statement of Charges regarding her proposed 

termination of employment.

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

President regarding the rationale for that action.” [DSOF ¶_]. Here, there is no dispute that these 

procedures were followed. On February 10, 2014, MCCCD General Counsel Lee Combs notified 

Plaintiff though her counsel that MCCCD Chancellor Glasper had “decided to accept the 

recommendation of the hearing committee” against termination, but “decided that suspension is 

appropriate based on the committee’s finding of a willful policy violation.” [DSOF ¶26]. Because the 

suspension was without pay, General Counsel Combs further informed Plaintiff that she had “an 

opportunity under the procedure to meet with Vice Chancellor of Human Resources Bowers to 

discuss the rationale for this decision before it [was] delivered.” [DSOF ¶26]. Plaintiff accepted this 

invitation and met with Vice Chancellor Bowers on March 7, 2014. [DSOF 26-28]. Accordingly, 

Plaintiff received all the procedures she was entitled to under the portion of MCCCD’s RFP Manual

pertaining to suspensions.

ii. Assuming, Arguendo, That Plaintiff’s Suspension Was 

Tantamount to A Termination, Plaintiff Still Received All of the 

Process Which She Was Due.

In apparent recognition of the fact that MCCCD followed proper procedures governing a

suspension, Plaintiff argues that her 14-month-suspension was the functional equivalent of a 

termination and, therefore, she was entitled to the more robust procedural requirements for dismissals 

under MCCCD’s RFP Manual. But even if the Court were inclined to accept Plaintiff’s argument, 

her alleged procedural due process claim fails because Plaintiff actually received all of the due process 

that would have applied to a terminated employee. 

“An essential principle of due process is that a deprivation of life, liberty, or property ‘be 

preceded by notice and opportunity for hearing appropriate to the nature of the case.’" Cleveland Bd. 

of Educ. v. Loudermill, 470 U.S. 532, 542 (1985) (citing Mullane v. Central Hanover Bank & Trust 

Co., 339 U.S. 306, 313, (1950)). The Supreme Court has further described “‘the root requirement’ of 

the Due Process Clause as being ‘that an individual be given an opportunity for a hearing before he is 

deprived of any significant property interest.’" Id. (emphasis in original). “This principle requires 

‘some kind of a hearing’ prior to the discharge of an employee who has a constitutionally protected 

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property interest in his employment.” Id. “Due process is flexible ... and calls for such procedural 

protections as the particular situation demands." Peacock v. Board of Regents of Univs. and State Coll.

of Arizona, 597 F.2d 163 (9th Cir. 1979) (citing Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 

33 L.Ed.2d 484 (1972). Plaintiff was provided with these protections. 

(1) Plaintiff Received Pre-Disciplinary Notice Of The 

Insubordination Charge On March 20, 2013. 

Before any person can be deprived of a property interest, they must first be notified in order 

to ensure that his/her later hearing is meaningful. See Loudermill, 470 U.S. at 542. Although Plaintiff 

now contends that she was denied pre-disciplinary notice of the charges against her, MCCCDsatisfied 

this requirement long ago when it provided Plaintiff with her March 20, 2013 Notice of PreDisciplinary Conference. [DSOF ¶18]. The Notice included the allegations against her and 

specifically asserted that Plaintiff had committed insubordination when she failed to issue 

reimbursement checks to students after being directed to do so by MCCCD. This is the very same 

allegation that a hearing committee of Plaintiff’s peers found her guilty of and which later formed the 

basis for her 14-month-suspension. The Notice further informed Plaintiff that a Pre-Disciplinary

Conference had been scheduled for April 3, 2013, and that the highest ranking individuals at Phoenix 

College, President Anna Solley and Vice President of Academic Affairs Casandra Kakar,would serve 

as Hearing Officers. [DSOF ¶18]. As stated in the Notice, the purpose of the meeting was to “ensure 

that the decision to be made concerning the complaints against you ... is based on complete and 

accurate information, to inform you of the charges against you and the evidence in support of those 

charges, and provide you with an opportunity to respond.” [DSOF ¶18]. Simply put, as of March 20, 

2013, MCCCD had satisfied its obligation to put Plaintiff on notice of the charges against her. 

(2) Plaintiff Received Due Process Hearings and Numerous 

Meaningful Opportunities to Be Heard.

A plaintiff with a property interest in employment is further entitled to receive a due process 

hearing consisting of a meaningful opportunity to be heard. Here, Plaintiff contends that she was 

denied her meaningful opportunity to be heard because MCCCD purportedly did not “allow [her] any 

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opportunity to present evidence refuting the new Statement of Charges before a neutral finder-offact.” Doc. 14. Given that Plaintiff received a full day evidentiary hearing and a meeting with the 

Vice Chancellor of Human Resources prior to suspension, it is unclear why Plaintiff believes that she 

was short-changed. What is clear is Plaintiff is attempting to elevate form over substance. It is wellestablished that “[d]ue process is flexible ... and calls for such procedural protections as the particular 

situation demands." Peacock, 597 F.2d at 165. The key aspect of due process is whether the aggrieved 

employee has received a hearing in which he/she has received a meaningful opportunity to be heard. 

The “hearing” afforded in due process procedure does not require the elaborate trappings or 

formalities of judicial hearings. See Loudermill, 470 U.S. at 545. “The formality and procedural 

requisites for the hearing can vary, depending upon the interests involved and the nature of the 

subsequent proceedings.” Boodie v. Connecticut, 410 U.S. 371, 378 (1971). Here, even though 

Plaintiff was only suspended, she effectively received all of the due process protections applicable to 

a termination, and she certainly received a hearing and meaningful opportunity to be heard. 

Indeed, as set forth in section II (Factual Background), Plaintiff received multiple 

opportunities to be heard with respect to her discipline for her undisputed willful insubordination. 

[DSOF ¶18-36]. These opportunities to be heard included multiple meetings with key decisionmakers within MCCCD administration and a full day long evidentiary hearing before a committee of 

her peers. [DSOF ¶18-36]. In addition, Plaintiff’s attorney submitted a nine page legal brief to the 

MCCCD Governing Board outlining her arguments that “a fourteen-month suspension is the 

economic equivalent of a dismissal.” [DSOF ¶28]. Plaintiff also submitted at least four letters to the 

Governing Board asserting the same argument. [DSOF ¶30-33]. Plaintiff and her counsel each 

separately appeared before the Governing Board in open session and argued that her suspension was 

improper and “the functional equivalent of a termination from the district.” [DSOF ¶29]. And if that 

were not enough, Plaintiff also had two other individuals separately appear on her behalf before the 

Governing Board to advocate for the reversal of her suspension. [DSOF ¶29]. Simply put, in light of 

the multiple opportunities that Plaintiff was provided to be heard and to argue against suspension, 

Plaintiff is now foreclosed from arguing that her procedural due process rights were somehow denied. 

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Finally, itshould be noted that nowhere in Plaintiff’s 117 paragraph Amended Complaint does 

she contend that her substantive due process rights were violated. The reason for this omission is 

obvious. Plaintiff has deliberately chosen to focus on alleged procedural deficiencies in MCCCD’s 

disciplinary process to divert attention from her egregious misconduct. As discussed above, the 

MCCCD Hearing Committee found Plaintiff to have “willfully and intentionally failed to follow 

instructions that were communicated” to her by President Solley and concluded that Plaintiff had 

engaged in “willful insubordination” by violating a lawful directive to issue refunds to students. 

[DSOF ¶24]. During the hearing, Plaintiff offered no excuse or rationale for her insubordination. 

Instead she merely testified that she had made a “mistake.” [DSOF ¶24]. Despite conceding her 

“mistake,” Plaintiff has to this day refused to issue refunds to her students. [DSOF ¶17,36]. Under 

these circumstances, an utterly insubordinate and unprofessional employee is lucky to have escaped 

with only a 14-month-suspension. Indeed, Plaintiff does not even attempt to argue that the suspension 

was somehow disproportionate to her misconduct so as to constitute a violation of her substantive due 

process rights. 

B. Plaintiff’s Request for Declaratory Relief is Not Actionable.

Plaintiff’s request for declaratory relief relates to a personnel action that was put into place on 

December 9, 2010, in response to Plaintiff’s practice of misusing copyright protected materials.

[DSOF ¶12-14] Plaintiff’s conduct in this regard subjected MCCCD to a substantial risk of liability.

In addition, Plaintiff has remained insubordinate and has never issued refunds to students to whom 

she improperly sold her so-called course materials. [DSOF ¶36] 

Although Plaintiff has requested the extraordinary remedy of declaratory relief, Plaintiff has 

not cited to a single authority or case in which declaratory relief has been awarded in circumstances 

even remotely similar to the present case. The reason for this omission is self-evident – there is no 

legal basis for declaratory relief in these circumstances. But even assuming, arguendo, that Plaintiff’s

request for declaratory relief has some basis in the federal Declaratory Judgment Act, Plaintiff must 

still identify an ongoing violation of statutory or constitutional provisions in order to state an 

actionable claim for relief. The Declaratory Judgment Act provides that, "[i]n a case of actual 

controversy within its jurisdiction ... any court of the United States ... may declare the rights and other 

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legal relations of any interested party seeking such declaration, whether or not further relief is or could 

be sought." 28 U.S.C. § 2201(a). The Supreme Court has held that “the phrase ‘case of actual 

controversy’ in the Act refers to the type of ‘Cases’ and ‘Controversies’ that are justiciable under 

Article III.” MedImmune, Inc. v. Genetech, Inc. 549 U.S. 118, 127, 127 S.Ct. 764, 771 (2007). 

Here, there simply is no case or controversy before the Court regarding the copy restrictions 

that MCCCD imposed on Plaintiff. The December 9, 2010 Directive is a routine personnel action

which remains in place due to Plaintiff’s continuing insubordination. [DSOF ¶__] Although Plaintiff 

may object to the continuing restrictions presented by the Directive, she has no claim under the 

Declaratory Judgment Act. As the Supreme Court held long ago, "The Due Process Clause of the 

Fourteenth Amendment is not a guarantee against [allegedly] incorrect or ill-advised personnel 

decisions." Bishop, 426 U.S. at 350, 96 S.Ct. at 2079. To hold otherwise “would enable every 

discharged employee to assert a constitutional claim merely by alleging that his former supervisor 

made a mistake.” Id. 

Moreover, even if the Court were inclined to find the existence of a case or controversy, the 

Court should not exercise its discretion in this case. The Supreme Court has emphasized that the 

Declaratory Judgment Act permits, but does not require, a federal court to issue a declaratory 

judgment. Wilton v. Seven Falls Co., 515 U.S. 277, 115 S.Ct. 2137 (1995). Accordingly, “[i]n the 

declaratory judgment context, the normal principle that federal courts should adjudicate claims within 

their jurisdiction yields to considerations of practicality and wise judicial administration.” Id. 515 U.S. 

at 287, 115 S.Ct. at 2143. Here, given Plaintiff’s gross insubordination, the Court should not intrude 

into the realm of personnel decisions which should properly be reserved for the employer. Otherwise, 

the Declaratory Judgment Act will become a tool for plaintiffs’ lawyers to challenge virtually any 

disciplinary action imposed by an employer. 

III. CONCLUSION

For the above and foregoing reasons, Defendants respectfully submit that the Plaintiff’s 

Amended Complaint should be dismissed in its entirety and that summary judgment should be entered 

in favor of Defendants on all claims.

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RESPECTFULLY SUBMITTED this 3rd day of March 2017.

FISHER & PHILLIPS LLP

By s/ Shayna H. Balch

Pavneet Singh Uppal

Shayna H. Balch

3200 N. Central Avenue, Suite 805

Phoenix, Arizona 85012-2425

Attorneys for Defendants

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CERTIFICATE OF SERVICE

I hereby certify that on the 3rd day of March 2017 I electronically transmitted the 

attached document 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 registrant(s):

Edmundo P. Robaina

Thomas T. Griffin

Ashley A. Marton

ROBAINA & KRESIN PLLC

5343 North 16th Street, Suite 200

Phoenix, Arizona 85016

Attorneys for Plaintiff

 s/ Michelle Colwell 

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