1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

Edmundo P. Robaina (No. 018125) 

Thomas T. Griffin (No. 022475) 

Ashley A. Marton (No. 029442) 

ROBAINA & KRESIN PLLC

5343 North 16th Street, Suite 200 

Phoenix, Arizona 85016 

Telephone: (602) 682-6450 

Facsimile: (602) 682-6455 

epr@robainalaw.com 

ttg@robainalaw.com 

aam@robainalaw.com 

Attorneys for Plaintiff Cleopatria Martinez 

UNITED STATES DISTRICT COURT 

DISTRICT OF ARIZONA 

Cleopatria Martinez, 

 Plaintiff, 

vs. 

Maricopa County Community College 

District, et al., 

 Defendants. 

No. CV 15-01759 NVW 

PLAINTIFF’S RESPONSE TO 

DEFENDANTS’ MOTION FOR 

SUMMARY JUDGMENT

(Oral Argument Requested) 

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

responds to Defendants’ Motion for Summary Judgment. Plaintiff’s response is 

supported by the following Memorandum of Points and Authorities 

MEMORANDUM OF POINTS AND AUTHORITIES 

I. FACTUAL BACKGROUND RELEVANT TO DEFENDANTS’ MOTION1

A. Martinez’s Employment and Right to Academic Freedom 

Martinez has been employed by Defendant Maricopa County Community College 

District (“MCCCD”) as a mathematics professor since 1985, and has worked at 

MCCCD’s Phoenix College campus since 1995. [Statement of Material Facts in Support 

of Plaintiff’s Motion for Summary Judgment (“PSOF”) [Doc. 70] ¶ 1]. As a member of 

MCCCD’s residential faculty, Martinez’s rights with respect to various employment 

 

1

 Parts of the factual background in this matter are more fully set forth in Plaintiff’s 

Motion for Summary Judgment. 

Case 2:15-cv-01759-NVW Document 79 Filed 04/17/17 Page 1 of 14
 - 2 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

matters are set forth in Residential Faculty Policies (the “RFP”) that at relevant times 

were ratified by MCCCD’s Governing Board and Defendant Dr. Rufus Glasper 

(“Glasper”) [PSOF ¶¶ 9-11]. 

Among the provisions relevant to this matter, 2012-2013 RFP § 3.1, entitled 

“Instructional Rights/Academic Freedom,” provides that: 

Faculty are entitled to instructional freedom in discussing their subject with 

students, and they should exercise their best effort to ensure topics are 

relevant to their subject. Faculty will determine curriculum and relevant 

subject matter for courses, recommend appropriate pedagogy, textbooks, 

and other materials relevant to teaching their subject. 

[Plaintiff’s Controverting Statement of Facts (“CSOF”) ¶ 1]. 2012-2013 RFP § 3.9 

further states that: “Nothing in this policy shall be construed to deny or diminish any 

individual rights that a member has under the law.” [CSOF ¶ 2]. 

B. Martinez’s Use, Under the Fair Use Doctrine, of Copyright-Protected 

Materials

The borrowing of mathematics problems is a longstanding, widespread custom 

throughout MCCCD and academia at large. [CSOF ¶ 4]. During times relevant to this 

matter, Martinez and her colleagues routinely borrowed mathematics problems from other 

mathematicians to use in their student handouts for educational purposes on a not for 

profit basis. [CSOF ¶ 3]. 

Instead of requiring her mathematics students to purchase textbooks, Martinez 

prepared her own course materials and distributed them to her students. [CSOF ¶ 5]. 

Martinez believed that the Copyright Act of 1976 authorized her to use small portions of 

other scholars’ work under the “Fair Use” doctrine because she was using it only for 

classroom teaching purposes. [CSOF ¶ 6]. Indeed, the Hearing Committee ultimately 

found that pursuant to the “Fair Use” doctrine of the Copyright Act, the use of 

copyrighted work for purposes such as teaching (including multiple copies for classroom 

Case 2:15-cv-01759-NVW Document 79 Filed 04/17/17 Page 2 of 14
 - 3 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

use) is not an infringement of copyright. [CSOF ¶ 7].2

Despite the applicability of the Fair Use doctrine to Martinez’s use of the textbook 

materials, on or around January 12, 2010, MCCCD’s Vice President of Academic 

Services, Ronnie Elliot sent an email to Martinez notifying her that there were alleged 

copyright-related problems with the materials she had printed for the Fall 2009 and 

Spring 2010 semester. [CSOF ¶ 8]. Over the next several weeks, other members of 

MCCCD’s administration also communicated to Martinez alleged copyright-related 

concerns. [CSOF ¶ 9]. 

Thereafter, Martinez did not use any of the “lecture notes” in question. [CSOF ¶ 

10]. Martinez, further, obtained written permission from the publisher of Sullivan & 

Sullivan’s “Precalculous,” to copy materials from their book. [CSOF ¶ 11]. 

Nevertheless, on December 9, 2010, Phoenix College President Anna Solley, 

concluded that Martinez’s alleged misconduct posed an unacceptable risk of a copyright 

infringement claim, among other things, and imposed restrictions on Martinez’s 

photocopying privileges. [CSOF ¶ 12]. The December 9, 2010 Directive prohibited 

Martinez from utilizing any course materials of her own creation. [CSOF ¶ 13]. Instead, 

Martinez was required 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 persons other than [Martinez].” [CSOF ¶ 14]. Solley noted that violation of 

the directive would be considered grounds for disciplinary action, up to and including 

termination. Id. 

At the beginning of the Fall 2012 semester, Martinez informed her students that 

they were not required to purchase a course textbook and that she would provide them 

with her own course materials in lieu of a textbook. [CSOF ¶ 15]. Martinez further did 

not submit her Fall 2012 materials to the Mathematics Department Chairperson for 

 

2

 It is undisputed that the Hearing Committee’s Findings of Facts, Conclusions of Law 

and Recommendations are binding on the parties pursuant to 2012-2013 RFP § 3.15.7. 

[PSOF ¶ 24]. 

Case 2:15-cv-01759-NVW Document 79 Filed 04/17/17 Page 3 of 14
 - 4 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

approval. [CSOF ¶ 16]. 

C. The Notice of Intent to Dismiss, and the Hearing Committee’s Binding 

Finding that MCCCD Failed to Prove its Copyright Infringement 

Allegations

On August 9, 2013, Defendant Glasper, who at relevant times was MCCCD’s 

Chancellor, issued Martinez a notice of intent to dismiss Martinez from her employment. 

[PSOF ¶ 3]. In the notice, Glasper wrote, in pertinent part, that Phoenix College 

President Anna Solley had forwarded a statement of charges to Interim Vice Chancellor 

for Human Resources James Bowers; that Bowers had reviewed allegations and 

recommended to Glasper that cause existed for Martinez’ termination; that Glasper 

concurred with the recommendation; and that Martinez had the right to a hearing on the 

matter. [PSOF ¶¶ 5-6]. 

Along with the notice of intent to dismiss Martinez, Glasper sent Martinez a letter 

from Bowers to Glasper that included a “Statement of Charges” in which it was alleged 

that in relation to her use of materials from textbooks in her “lecture notes” (which she 

provided to her students at her copying cost), Martinez had violated U.S. copyright law 

and MCCCD’s cash handling rules “as covered by MCCCD Administrative Regulation 

1.17, and engaged in “[w]illful and intentional failure to perform job duties” in relation to, 

among other things, Martinez’s failure to issue refunds to [her] students as directed by 

President Solley in violation of MCCCD Administrative Regulations 6.7.1 and 6.7.3. 

[PSOF ¶ 7]. 

Under Section 3.11.2. of the 2012-2013 RFP, Martinez has continuous rights to 

employment and can only be disciplined for just cause. [PSOF ¶¶ 9-18]. Pursuant to 

2012-2013 RFP § 3.14.4., Martinez exercised her right to an evidentiary hearing on the 

proposed dismissal, which was held on November 18, 2013. [PSOF ¶ 29]. 

On December 9, 2013, in a decision captioned Maricopa County Community 

College District v. Dr. Cleopatria Martinez, the Hearing Committee made binding 

findings of fact and conclusions of law that Phoenix College had failed to carry its burden 

of proof regarding Martinez’s alleged violation of MCCCD’s cash handling rules found in 

Case 2:15-cv-01759-NVW Document 79 Filed 04/17/17 Page 4 of 14
 - 5 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

MCCCD Administrative Regulations 1.17., alleged violations of U.S. Copyright Law and 

fair use guidelines, and alleged violations of MCCCD Administrative Regulations 3.2.4 

and 3.2.5. related to copyright regulations. [PSOF ¶ 30]. The Committee further found, 

however, that Martinez had 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. [PSOF ¶ 31]. The Hearing Committee further recommended that the 

Governing Board deny the termination request and allow Martinez to continue her 

MCCCD employment. [PSOF ¶ 32]. 

D. Glasper’s Suspension of Martinez and Martinez’s Futile Attempts to 

Seek Board Review 

 After the Hearing Committee made its recommendation, Glasper had the option, 

pursuant to 2012-2013 RFP § 3.15.8., to adopt the Hearing Committee’s recommendation 

regarding dismissal or make his own recommendation to the Governing Board. [PSOF ¶¶ 

24-25]. According to Glasper, this included the option to make a recommendation to the 

Governing Board to suspend Martinez. [PSOF ¶ 35]. 

On February 10, 2014, Glasper sent a letter to the Governing Board indicating that 

he had accepted the Hearing Committee’s recommendation that Martinez not be 

dismissed. [PSOF ¶ 34]. He did not, however, recommend any other discipline. [PSOF ¶ 

36]. Instead, the same day Glasper sent a letter to Martinez notifying her that he was 

suspending her under his “sole authority” pursuant to 2013-2014 RFP § 3.11. [PSOF ¶ 

37]. 

As Defendants note in their motion, Martinez attempted in various ways to seek 

Board review of Glasper’s action. However, Martinez had no right under 2013-2014 RFP 

§ 3.11. to have the suspension reviewed by the Governing Board [PSOF ¶ 22], and other 

than in “citizen’s interim” (also known as “calls to the public”), during which the public 

is allowed to speak at public Board meetings for approximately five minutes or by letter 

(with the written contents of her presentation) in a three-minute presentation regarding 

her suspension, Martinez never had the opportunity to “argue” her position in front of the 

Case 2:15-cv-01759-NVW Document 79 Filed 04/17/17 Page 5 of 14
 - 6 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

Board. [CSOF ¶ 23] Moreover, it is undisputed that the Board never responded 

Martinez’s concerns, and never made any determinations as to, or any pronouncements 

with regard to, Martinez’s suspension. [CSOF ¶ 24]. As a result, Glasper’s action went 

un-reviewed, Martinez did not work from April of 2014 until the Fall of 2015, and she 

was without pay or benefits for 16 months. [CSOF ¶ 25].3

E. Continuing Restrictions on Martinez After the Suspension 

On August 25, 2015, PC Interim President Chris Haines sent a letter to Martinez 

indicating, in pertinent part, that restrictions imposed by the December 9, 2010 directive 

were still in effect and that she intended to enforce them. [CSOF ¶ 17]. On October 12, 

2015, Martinez sent an email to Haines requesting that she remove the restrictions. 

[CSOF ¶ 18]. Martinez noted that the basis for the directive (the alleged copyright 

violations) no longer exists, the directive obstructs Martinez’s teaching capacity by not 

allowing her to write test questions of her own, not allowing her to use examples that she 

constructs in her daily lectures, and not allowing her to use anything that she develops. 

[CSOF ¶ 19]. 

Martinez further noted that “the departmental barriers resulting from the directive 

have placed unjustified stress on [her] spontaneous teaching.” [Id.]. Martinez cited, as an 

example, the fact that she submitted a test to be approved because the problems that she 

used were based on material covered in class and addressed the needs of the students; that 

it was rejected because she did not copy problems directly from the textbook, and the 

rejection threw off her teaching schedule. [CSOF ¶ 20]. She further noted that the 

restrictions stifle her innovation; and place limits on her ability to teach based on the 

needs of the students and what the students need to learn. [CSOF ¶ 21]. The restrictions, 

however, were not lifted. [CSOF ¶ 22]. 

 

3

 The suspension officially ran from April 14, 2014 until May 15, 2015. However, Fall 

classes did not begin again until August of 2015, and until then, Martinez was not allowed 

to set foot on campus, and was without pay or benefits. 

Case 2:15-cv-01759-NVW Document 79 Filed 04/17/17 Page 6 of 14
 - 7 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

On November 4, 2015, Martinez filed suit against MCCCD and Glasper. In her 

amended complaint, Martinez alleges that the defendants interfered with Martinez’s 

liberty interests in her professional reputation and deprived her of her property interest in 

continued employment, both in relation to her suspension. Martinez also seeks declaratory 

relief regarding MCCCD’s continued imposition of the December 9, 2010 directive 

because it interferes with her First Amendment right to academic freedom. [Plaintiff’s 

Amended Complaint ¶¶ 93-117]. 

II. ARGUMENT 

A. Defendants Violated Martinez’s Due Process Rights with Respect to 

Her Property Rights in Continued Employment 

In their motion, with respect to Martinez’s property interest claims, Defendants 

essentially argue that a long term suspension is not tantamount to a dismissal; and that 

because Martinez received a hearing on the proposed dismissal, Glasper subsequently 

suspended Martinez pursuant to MCCCD’s policies, Martinez spoke with ViceChancellor Bowers before the suspension was finalized, and Martinez made several 

attempts to obtain Governing Board review, Martinez necessarily received all the process 

she was due. Defendants’ arguments are incorrect for the following reasons. 

First, whether or not Martinez’s suspension was the functional equivalent to a 

termination, it is clear under the law that Martinez has a property interest in her 

employment and was entitled to full due process regarding the suspension. See 

Association for Los Angeles Deputy Sheriffs v. County of Los Angeles, 648 F.3d 986, 991 

(9th Cir. 2011); Finkelstein v. Bergna, 924 F.2d 1449, 1451 (9th Cir. 1991). Moreover, as 

more fully set forth in Plaintiff’s Motion for Summary Judgment, due process is a matter 

of federal law and may not be diminished by the fact that a public employer may have 

specified its own procedures that it deems adequate for determining the preconditions to 

adverse official action. Cleveland Board of Education v. Loudermill, 470 U.S. 532, 540-

41 (1985); Logan v. Zimmerman Brush Co., 455 U.S. 422, 432 (1982). Due process 

requires, among other things, an impartial decisionmaker with respect to discipline. 

Case 2:15-cv-01759-NVW Document 79 Filed 04/17/17 Page 7 of 14
 - 8 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

Clements v. Airport Auth., 69 F.3d 321 (9th Cir. 1995). Where an official occupies two 

practically and seriously inconsistent positions, one partisan and the other judicial, there 

is no due process. See Ward v. Village of Monroeville, 409 U.S. 57 (1972); Walker v. 

Berkeley, 951 F.2d 182, 184 (9th Cir. 1991). 

In this case, as noted more fully in Plaintiff’s Motion for Summary Judgment, 

Glasper was a partisan in Martinez’s termination case and therefore could not be the 

arbiter of her ultimate discipline. Moreover, the fact that, as Defendants note, Glasper 

offered Martinez the opportunity to meet with Vice Chancellor Bowers to discuss 

Glasper’s rationale for the decision to suspend her, and that Martinez’s lawyer sent a 

“legal brief” to Bowers and the Governing Board and other letters to the Governing Board 

regarding the suspension, does not render the suspension compliant with due process 

requirements. Notably, neither Bowers nor the Board had the authority under 2013-2014 

RFP § 3.11 to overturn Glasper’s decision. [PSOF ¶ 22]. And in any case, as noted in 

Section E, above, the Governing Board never reviewed the suspension. Glasper’s 

suspension of Martinez, which was not reviewed by a neutral decisionmaker, therefore 

violated Martinez’s due process rights. 

Second, even if, as Defendants suggest, the dismissal hearing could have provided 

adequate due process for Glasper’s suspension of Martinez, it would still not have been 

sufficient in this case. The reason is that Defendants made a material allegation in the 

February 10, 2014 notice of suspension that was not listed in the August 9, 2013 

Statement of Charges and not adjudicated by the Hearing Committee, but which was used 

as a basis for the suspension. Specifically, in the February 10, 2014 Statement of 

Charges, Defendants claimed for the first time that Martinez’s “course materials charge 

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

alleged violation of MCCCD Administrative Regulations 1.12.2. and 1.12.6. [PSOF ¶¶ 

43-45]. The fact that Martinez was never given the opportunity to challenge this 

allegation before a neutral factfinder/decisionmaker renders the suspension, based in part 

on this allegation, in violation of her due process rights. 

Case 2:15-cv-01759-NVW Document 79 Filed 04/17/17 Page 8 of 14
 - 9 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

B. Martinez’s Request for Declaratory Relief is Appropriate and 

Warranted 

In their motion, Defendants assert that the December 9, 2010 Directive, which 

requires Martinez to use only course materials approved by the department, that are 

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

Martinez was put in place “in response to Plaintiff’s practice of misusing copyright 

protected materials”. [Defendants’ Motion for Summary Judgment (“Defendants’ 

Motion”) at p. 17, lines 16-17; Defendants’ Statement of Facts (“DSOF”) ¶¶ 12-14]. 

Defendants further claim that declaratory relief is unavailable to Martinez because “there 

is no case or controversy before the Court regarding the copy restrictions that MCCCD 

imposed on Plaintiff”, and that even if there were, “the Court should not intrude into the 

realm of personnel decisions which should be properly reserved for the employer.” 

[Defendants’ Motion at p. 17, lines 21-24 and p.18, lines 20-21]. Defendants’ arguments 

are incorrect for the following reasons. 

1. The Declaratory Judgment Act 

The Declaratory Judgment Act (the “DJA”) states: “In a case of actual controversy 

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

legal relations of any interested party seeking such declaration.” 28 U.S.C. § 2201(a). The 

DJA does not create new substantive rights, but merely expands the remedies available in 

federal courts, and it gives the courts discretion as to whether to exercise the conferred 

remedial power. Countrywide Home Loans, Inc. v. Mortgage Guar. Ins. Corp., 642 F.3d 

849, 853 (9th Cir. 2011). 

To determine whether a declaratory judgment is appropriate, a two-part test is used. 

First, the court must inquire whether there is a case of actual controversy within its 

jurisdiction. American States Ins. Co. v. Kearns, 15 F.3d 142, 143 (9th Cir. 1994). 

Second, the court must decide whether to exercise jurisdiction. Id. at 143-144. 

“To determine whether an action presents a justiciable case or controversy, courts 

consider ‘whether the facts alleged, under all the circumstances, show that there is a 

Case 2:15-cv-01759-NVW Document 79 Filed 04/17/17 Page 9 of 14
 - 10 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

substantial controversy, between parties having adverse legal interests, of sufficient 

immediacy and reality to warrant the issuance of a declaratory judgment.’” Shell Gulf of 

Mex. Inc. v. Ctr. For Biological Diversity, Inc., 771 F.3d 632, 635 (9th Cir. 2014) (citing 

Md. Cas. Co. v. Pac. Coal & Oil Co., 312 U.S. 270, 273, (1941)). The Ninth Circuit has 

held that the justiciability requirement is identical to Article III’s constitutional or 

controversy requirement. Kearns, 15 F.3d at 143. Thus, the DJA allows individuals to 

seek a declaration of the constitutionality of a disputed governmental action. See Cal. 

Medical Ass’n v. Fed. Election Comm’n, 435 U.S. 182, 188 (1981); Duke Power Co. v. 

Carolina Envtl. Study Grp., Inc., 438 U.S. 59, 71 n. 15 (1978); Barrett v. Premo, 101 

F.Supp. 3d 980, 999 (D. Or. 2015). 

With regard to whether this Court should exercise its discretion in this case, 

declaratory relief is appropriate “(1) when the judgment will serve a useful purpose in 

clarifying and settling the legal relations in issue, and (2) when it will terminate and afford 

relief from the uncertainty, insecurity, and controversy giving rise to the proceeding.” 

Bilbrey v. Brown, 738 F.2d 1462, 1470 (9th Cir. 1984) (quoting McGraw-Edison Co. v. 

Performed Line Prods. Co., 362 F.2d 339, 342 (9th Cir. 1966), cert denied, 385 U.S. 919 

(1966). 

2. MCCCD is Violating Martinez’s First Amendment Right to 

Academic Freedom

MCCCD’s prohibition of Martinez’s use of her own materials is not an abstract or 

hypothetical issue. Defendants acknowledge the ongoing limitations placed on Martinez. 

[DSOF ¶ 36]. Nor are nor the limitations placed on Martinez simply a matter of 

personnel policies, as Defendants suggest. The limitations infringe upon Martinez’s 

academic freedom in violation of the First Amendment. 

 Academic freedom, though not a specifically enumerated constitutional right, has 

long been viewed as a special concern of the First Amendment. University of California 

Board of Regents v. Bakke, 438 U.S. 265, 312 (1978); Keyishian v. Bd. of Regent, 385 

U.S. 589, 603 (1967). The Supreme Court has, moreover, repeatedly stressed the 

Case 2:15-cv-01759-NVW Document 79 Filed 04/17/17 Page 10 of 14
 - 11 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

importance of protecting academic freedom under the First Amendment. Demers v. 

Austin, 746 F.3d 402, (9th Cir. 2012). Indeed, the Court has noted that: “Our Nation is 

deeply committed to safeguarding academic freedom, which is of transcendent value to 

all of us not merely to the teachers concerned.” Keyishian, 385 U.S. at 603. 

The precise contours of academic freedom have been difficult to define. Dow 

Chemical Co. v. Allen, 672 F.2d 1262, 1275 (7th Cir. 1982). However, in the Ninth 

Circuit, the concept applies to the rights of individual faculty members to perform their 

duties. See Demers, 746 F.3d at 411. See also Hardy v. Jefferson Cmty. College, 260 

F.3d 671, 680 (6th Cir. 2001) (“...the argument that teachers have no First Amendment 

rights when teaching, or that the government can censor teacher speech without 

restriction, is totally unpersuasive”); Allen, 672 F.2d at 1275 (noting that one First 

Amendment scholar has written ‘(t)he heart of the system consists in the right of the 

individual faculty member to teach, carry on research, and publish without interference 

from the government, the community, the university administration, or his fellow faculty 

members.’). 

In retaliation context, the Ninth Circuit has determined that the Pickering 

balancing test applies to academic employee speech. See Demers, 746 F.3d at 422.4

 The 

Pickering test has two parts: First, the employee must show that his or her speech 

addresses “matters of public concern.” Pickering v. Board of Education, 391 U.S. 563, 

568 (1968). Second, the employee’s interest in commenting upon matters of public 

concern must outweigh the interest of the State, as employer, in promoting the efficiency 

of the public services it performs through its employees. Id.

 

4

 This appears to be the closest analog to the situation in this case because, as noted in 

Section I.B., above, in the December 9, 2010 directive, then president Solley threatened 

Martinez with discipline, up to and including termination, if she defied the directive, and 

as noted in Section I.E., above, in August of 2015, interim President Haines wrote 

Martinez that the restrictions imposed by the December 9, 2010 directive were still in 

effect and she intended to enforce them. In effect, the threat of retaliation was clear and 

palpable. 

Case 2:15-cv-01759-NVW Document 79 Filed 04/17/17 Page 11 of 14
 - 12 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

“Speech involves a matter of public concern when it can fairly be considered to 

relate to ‘any matter of political, social or other concern to the community.’” Johnson v. 

Multnomah Cnty., 48 F.3d 420, 422 (9th Cir. 1995) (quoting Connick v. Myers, 461 U.S. 

138, 146 (1983). The essential question is whether the speech addresses matters of public 

as opposed to personal interest. Demers, 746 F.3d at 415; Destrochers v. City of San 

Bernadino, 572 F.3d 703, 709 (9th Cir. 2009). The Ninth Circuit has adopted a liberal 

construction of what an issue of public concern is under the First Amendment. Demers, 

746 F.3d at 415; Roe v. City & Cnty. of S.F., 109 F.3d 578, 586 (9th Cir. 1997). 

In striking the Pickering balance, courts give public employers wide discretion and 

control over the management of their personnel and internal affairs. Nichols v. Dancer, 

657 F.3d 929, 933 (9th Cir. 2011). This, however, does not mean that employer 

discretion is without bounds. Id. Pickering, after all, is a balancing test that requires 

courts to weight efficiency concerns against an employee’s legitimate interest in engaging 

on matters of public concern. Id. Thus, for instance, in Hardy, the Sixth Circuit held that 

a professor’s right to use highly offensive racial and gender-related epithets during a 

classroom discussion on the power of words to marginalize and oppress outweighed the 

college’s interest in regulating offensive speech. 260 F.3d at 682. 

In this case, the prohibition on Martinez’s academic freedom to choose her own 

course materials involves matters of public concern because it relates to her ability to 

innovate and to teach her students according to their needs. With respect to MCCCD’s 

interest in preventing Martinez from using her own materials, as noted in section A, 

above, in 2012-2013 RFP § 3.1., MCCCD has recognized the importance of, and indeed 

agreed to, academic freedom with respect to instructional decisions in the Residential 

Faculty Policies. Additionally, pursuant to 2012-2013 RFP § 3.9., it has acknowledged 

that nothing in its policies should be construed to deny or diminish any individual rights 

that a member has under the law. Finally, pursuant to 2012-2013 RFP § 3.15.7., the 

Hearing Committee issued binding findings that the Fair Use Doctrine allows the use of 

copyrighted materials for teaching purposes; that MCCCD did not prove that Martinez 

Case 2:15-cv-01759-NVW Document 79 Filed 04/17/17 Page 12 of 14
 - 13 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

had violated copyright laws or cash handling policies; and that in any case, Martinez has 

not used any of the lecture notes that gave rise to the directive since 2010. MCCCD 

cannot, therefore, claim a strong interest in determining Martinez’s course materials. 

In sum, an actual controversy exists with regard to Martinez’s claim of 

infringement of her First Amendment right to academic freedom; the Pickering balancing 

test tilts strongly in her favor; and this Court’s exercise of discretion to rule on the matter 

would serve a useful purpose in clarifying and settling the legal relations in issue and 

afford relief from uncertainty and controversy regarding the matter. This Court should 

therefore deny MCCCD’s motion for summary judgment on this issue. 

Martinez Concedes Her Liberty Interest Claims

At this time, Martinez concedes the causes of action in her Amended Complaint 

alleging violation of her liberty interest. 

III. CONCLUSION 

For the foregoing reasons, Plaintiff Cleopatria Martinez respectfully requests that 

the Court deny Defendants’ Motion for Summary Judgment with respect to her property 

interest claims and request for declaratory relief. Martinez concedes the liberty interest 

causes of action. 

RESPECTFULLY SUBMITTED this 17th day of April 2017. 

 ROBAINA & KRESIN PLLC

 By /s/ Edmundo P. Robaina 

 Edmundo P. Robaina 

 Thomas T. Griffin 

 Ashley A. Marton 

 

 Attorneys for Plaintiff Cleopatria Martinez 

Case 2:15-cv-01759-NVW Document 79 Filed 04/17/17 Page 13 of 14
 - 14 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

CERTIFICATE OF SERVICE 

I hereby certify that on the 17th day of April 2017, I caused the foregoing 

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

for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF 

Registrants: 

Pavneet Singh Uppal 

Shayna H. Balch 

FISHER & PHILLIPS LLP 

3200 N. Central Avenue, Suite 805 

Phoenix, Arizona 85012-2425 

puppal@laborlawyers.com 

sbalch@laborlawyers.com 

 Attorneys for Defendants 

By /s/ Gaynell Carpenter 

Case 2:15-cv-01759-NVW Document 79 Filed 04/17/17 Page 14 of 14