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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

_________________

Cleopatria Martinez, )

) No. CV 15-1759-PHX-NVW

Plaintiff, )

)

vs. ) Phoenix, Arizona

) October 30, 2017

Maricopa County Community ) 10:36 a.m.

College District, et al., )

)

Defendants. )

_____________________________ )

BEFORE: THE HONORABLE NEIL V. WAKE, JUDGE

REPORTER'S TRANSCRIPT OF PROCEEDINGS

(Motion Hearing)

APPEARANCES:

For the Plaintiff:

ROBAINA & KRESIN PLLC

By: Edmundo P. Robaina, Esq.

5343 North 16th Street, Suite 200

Phoenix, Arizona 85016

For the Defendant:

FISHER & PHILLIPS LLP - Phoenix

By: Pavneet Singh Uppal, Esq.

By: Shayna H. Balch, Esq.

3200 North Central Avenue, Suite 805

Phoenix, Arizona 85012

Official Court Reporter:

Laurie A. Adams, RMR, CRR

Sandra Day O'Connor U.S. Courthouse, Suite 312

401 West Washington Street, Spc 43

Phoenix, Arizona 85003-2151

(602) 322-7256

Proceedings Reported by Stenographic Court Reporter

Transcript Prepared by Computer-Aided Transcription

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P R O C E E D I N G S

THE COURTROOM DEPUTY: This is Case Number CV

15-1759, Martinez v. Maricopa County Community College

District, et al., before the Court for oral argument. Would

the parties please announce for the record.

MR. ROBAINA: Good morning, Your Honor. Edmundo

Robaina on behalf of Cleopatria Martinez.

MR. UPPAL: Your Honor, good morning. Pavneet Singh

Uppal of Fisher & Phillips for the defendants. With me is my

colleague, Shannon Balch.

THE COURT: All right. Good morning, counsel. I will

hear whatever you want to talk about but first I have some

questions.

Mr. Robaina, have you pleaded a claim under state law?

MR. ROBAINA: No, sir.

THE COURT: So you have only pleaded the federal due

process claim, correct?

MR. ROBAINA: Correct.

THE COURT: I'm not suggesting this, but I want to

make it clear, are you arguing that it's a violation of federal

due process of law to fail to follow state procedural law? I

don't think you are, but if you are, tell me.

MR. ROBAINA: No, sir. I'm --

THE COURT: All right. Now, the federal due process

inquiry goes to the adequacy and fairness of the procedure in

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light of the particular issue in inquiry, and it's a flexible

set of standards. And I, again, I think I know the answer to

this, but with respect to your claim of deprivation of property

in violation of federal due process of law, let me take it a

step at a time. With respect to the dismissal proceedings,

what procedure or process was missing that is necessary for a

minimally adequate federal due process of law?

MR. ROBAINA: In the dismissal proceeding, nothing.

THE COURT: Okay. Now, with respect to the suspension

proceeding, what procedure or procedures was missing that is

necessary to federally minimally adequate due process of law?

MR. ROBAINA: There's -- I can answer that in three

ways.

THE COURT: Why don't you come up to the podium.

MR. ROBAINA: Your Honor, the provision in the

residential faculty policies basically allows the chancellor --

THE COURT: Do me a favor. Give me a checklist, then

you can go back and explain it. What procedures were missing

that federal due process of law requires as a constitutional

minimum for the context of this inquiry?

MR. ROBAINA: The procedure itself has no appeal

right. It also requires federal due process.

THE COURT: What's the first one? No appeal right,

what, to the Board?

MR. ROBAINA: No appeal right to the Board.

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THE COURT: What else?

MR. ROBAINA: It also, federal due process requires a

fair and neutral arbiter.

THE COURT: What else?

MR. ROBAINA: If the process that was done in this

case were allowed, that means that the disciplinary procedure

for terminations would be rendered meaningless because in this

case, the chancellor, the hearing committee made a binding

finding of fact and law on this case and recommended to the

Board that the -- Dr. Martinez not be terminated.

THE COURT: And the chancellor accepted the finding

and accepted the recommendation?

MR. ROBAINA: Correct, and could have requested to the

board that a suspension be given to Dr. Martinez.

THE COURT: In that proceeding?

MR. ROBAINA: In that proceeding.

THE COURT: Actually, if you look at the actual text

of -- I'm going to -- it's the faculty policy but I'm used to

calling it rules and regulations, 3.15 says that if the

chancellor had taken it further, the Board would, quote, hear

arguments regarding the chancellor's and the hearing

committee's recommendation regarding dismissal.

MR. ROBAINA: Understood.

THE COURT: And then it says the Board, quote, shall

render a final decision regarding retention or dismissal.

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That's what it says.

MR. ROBAINA: Yes, sir.

THE COURT: Where does it say that if the chancellor

wishes to pursue a lesser discipline he has to proceed -- make

a recommended -- make that recommendation and has to do it

within the dismissal proceeding? Where does it say that?

Because I find it nowhere in any text.

MR. ROBAINA: It doesn't say it. In deposition I

asked Chancellor Glasper, could you have, in that proceeding,

requested that the Board suspend Dr. Martinez instead of

terminate her? And he said that yes, he could have.

THE COURT: So what? How is that a violation of

federal due process of law?

MR. ROBAINA: That is not a violation of federal due

process of law. But what I'm saying is he could have requested

it but instead he did not.

THE COURT: So what?

MR. ROBAINA: He used a procedure.

THE COURT: How does federal due process of law

require him to pursue a review and dismissal proceeding that

the text of the regulation does not require, actually

doesn't -- I mean, it doesn't say he could do it but he could

ask for anything. Why does federal due processes of law

require him to do what the regulation itself does not require

him to do? And if federal due process did require him to do

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it, how would that violate due process of law? That's just a

violation of state law.

MR. ROBAINA: Judge, let me explain.

THE COURT: Go right ahead.

MR. ROBAINA: If I may. The state law gives you a

property interest --

THE COURT: I know that. We're beyond that.

MR. ROBAINA: Okay. But the state law is not the

final say on whether or not it violates federal due process.

Federal due process requires a fair and impartial hearing.

THE COURT: Right now I'm talking about your third

point, so let's not slip around. All right?

MR. ROBAINA: Okay.

THE COURT: Your third point was even though the

regulations do not require him to make any recommendation for

approval of the Board for lesser discipline, somehow that I

have not been able to figure out, it violates federal due

process of law for him not to do what state law does not

require him to do.

MR. ROBAINA: No. It doesn't violate federal due

process for him not to request the suspension, but it violates

federal due process for him to suspend her.

THE COURT: That's like saying I prefer to win my

lawsuit. I need more explanation than that.

MR. ROBAINA: Because he is a party to the case and

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the disciplinary --

THE COURT: Three different things. I'm talking about

three different things. Let's not slip around between the

three. The third thing I'm talking about now is your assertion

that because somehow because he said he could have asked the

Board for approval of lesser discipline the federal

constitution steps in and requires him to do that even though

the text of the state procedure does not require it. Explain

that to me, and don't slip around to neutral arbitrators and no

appeal to the Board. That's from the suspension proceeding.

MR. ROBAINA: Well, I let me be clear. The fact that

he does not request the Board to suspend her is not a violation

of due process in itself.

THE COURT: Okay. Thank you. I think we have

narrowed our discussion down because in your brief, you did

acknowledge that when we're discussing liberty and property in

the termination proceeding, there was no deprivation of liberty

in violation of due process law. Now you are acknowledging

there was no deprivation of property either in violation of

federal due process law for that third reason. You have your

first two reasons, but for that third reason the chancellor did

not seek or make a recommendation to seek approval of the

Board.

So I think I'm going to hold you to that concession.

Let's go back to your other two arguments. One is there's no

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appeal to the Board and neutral arbitrator. Tell me about your

argument about -- with respect to the suspension, it is clear

in the state procedure there is no right to appeal to the

board. There was -- more concretely, there is no need for

board approval for that discipline or any discipline short of

termination. It doesn't require it.

How is that a denial of federal due process of law

when you had a decision making process, an inquiry where the

chancellor adopted the full and rich procedures of the

termination commission and adopted their finding of fact that

she was insubordinate? How is it that one has a federal due

process right to have the board necessarily approve that

suspension? Now, I understand that even though the board

didn't have to look at that, didn't have to approve it, she

could ask the board to step in. That's different. I want to

know how there is a federal due process right to have the board

ratify her suspension decision.

MR. ROBAINA: Because the rules themselves, the

faculty rules, provide that all discipline, including

suspensions, terminations, have to have just cause.

THE COURT: That's different.

MR. ROBAINA: No, sir.

THE COURT: If you want to talk about just cause,

there is nothing in your briefing about lack of just cause.

That's a substantive issue, and your client acknowledged she

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regretted having not complied with the order so there's no

briefing here about lack of just cause. Your argument is

solely that there was not constitutionally minimally adequate

procedure.

MR. ROBAINA: If I may, because of the just cause

requirement, she has a property interest.

THE COURT: I have already told you we're past that.

You don't have to talk about that.

MR. ROBAINA: The property interest in her employment

means that she has to have adequate due process of law. Due

process requires, for the suspension as well as the

termination, a pre-disciplinary hearing.

THE COURT: That was done. All this was done.

MR. ROBAINA: It was done but it also requires that

she go to a neutral arbiter of the decision.

THE COURT: No. No. Don't slip around. We're

talking about your due process argument that she has a federal

right to approval by the Board. That's different from your

argument about neutral decision makers. So don't slip around

between issues. I'm talking about your claim of a federal

constitutional right to have the Board review and approve her

suspension. I'm trying to understand what that is, and I

haven't heard anything yet. You did slip in to say, well, they

have to have cause. But there's no challenge in this, in your

briefs, to the cause for -- actually it's just a challenge to

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the adequacy of the process. I have read the briefs. There's

nothing in there and in any of this. It's completely obvious

that there was cause for discipline because she was

insubordinate as found by the finding decision of the hearing

committee in the prior proceeding.

So tell me how cause is even an issue here when you

didn't plead it and you didn't brief it.

MR. ROBAINA: All I meant to suggest with that, Your

Honor, was that because of the cause she has a property

interest.

THE COURT: I told you three times we're past that. I

understand that. Move on. We're talking now about the

procedure.

MR. ROBAINA: The final determiner must be someone who

is independent.

THE COURT: I'm not going there. You keep slipping

around. Are we in agreement now that there is, in fact, upon

further reflection, no federal constitutional due process right

to have the suspension reviewed and approved by the Board? Is

that past us now? Are you acknowledging that, too?

MR. ROBAINA: There is a -- if it's not the Board then

I don't know who else in that situation could be the neutral

arbiter.

THE COURT: I'm not talking about neutral arbiter. I

will come to that third. Don't slip around. Your brief, and I

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thought you were saying, that because she didn't get -- because

the state procedure did not require board approval for the

discipline somehow it violates due process of law for that to

be done at the chancellor level.

MR. ROBAINA: Because the state procedure does not

require any review that violates due process of law.

THE COURT: Well, let's focus on that. A decision was

made, first of all, here, the chancellor was drawing upon the

prior proceedings that were richly adequate and fair with

respect to termination in which they found that she was guilty

of insubordination and the commissioner -- the chancellor

accepted that. He gave her the further notice. She had her

chance to talk with her. She had a chance to talk with other

people. She had her chance to be heard by them. I think

didn't she go and talk to the general counsel, too?

MR. ROBAINA: To the vice chancellor.

THE COURT: Vice-chancellor. They all heard her

argument. And it appears to me there's nothing in this brief

that suggests her argument was I didn't do that. I was not

insubordinate. Her argument was don't give me this discipline.

It's a discretionary matter. Give me less or don't give me

anything. That's different from saying I wasn't insubordinate.

It's the difference in me saying the light was green when I

entered the intersection as opposed to saying the light was red

when I entered the intersection. Nowhere in your briefs does

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she dispute she was insubordinate. If there is, I will give

you a minute to look at the briefs and point it out to me where

it is.

So they had procedure. The adopted procedure, the

suspension or the termination commission was imminently fair

and adequate. By the way, due process does not require that

decisions be right. They have to be fair and adequate. They

don't have to be right. And so she talked to people. She had

the chance to talk further. The chancellor decided, okay, I

have heard you. Other people have heard you. You haven't

changed my mind. Why is that not minimally adequate federal

due process of law without review higher up?

MR. ROBAINA: Because the other people that she spoke

with could not change the chancellor's decision.

THE COURT: But there is utterly contrary -- there's

no basis whatever in federal due process law. You understand

in the early days of the Republic in the 19th Century, federal

courts, in criminal cases, when they imposed sentence,

including death, there was no right to appeal. That passed

muster.

So I'm challenging you to tell me where is it, if the

process is fair and adequate, you have to have a higher appeal.

I'm not aware of any such principle in federal constitutional

law and I challenge you to give me any case that says that.

MR. ROBAINA: That you have to have a higher appeal?

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THE COURT: Yes. Take a minute if you want to look at

your brief. It's nowhere in your briefs. It's nowhere in

federal constitutional law, either.

MR. ROBAINA: What I can say is the federal

constitutional law requires the part that they gave her, the

meetings with Dr. Solley, the meetings, the pre-disciplinary

meetings, that's the first half of due process requirements.

The second half of due process requirement requires a hearing,

a full evidentiary hearing with a neutral arbiter.

THE COURT: No, it doesn't. Well, first it doesn't

require -- you know, if you want extreme end of the spectrum

the Supreme Court has held that we have frequent issues about

prisoner's discipline. And all the due process requires when a

prisoner is disciplined is for the prison official to listen to

him, hear him say he didn't do it. That's all that's required.

The measure of procedure is flexible and depends on what's

there, and the notion that you have to have a full hearing --

by the way, in this case, the chancellor went by the full

evidentiary hearing that found that she was insubordinate and

you have already told me there was nothing constitutionally

inadequate about that procedure or that binding finding. So I

challenge you to tell me how it is that she is entitled to a

second hearing when the first hearing was fully adequate and

went against her as to that finding.

And frankly, even disciplinary matters don't -- you

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know, educational institutions and government bodies, they

often do have these full blown procedures for employee

discipline. They are not constitutionally required. Private

employers don't have to do that. Now, actually, it's a bad

analogy because private employers usually are not subject to

due process. But the question is what procedure is needed and

I challenge you to give me any authority that says that a full

blown evidentiary hearing as opposed to talking it through,

hearing, taking a look at what there was is constitutionally

required much less as required twice. Tell me.

MR. ROBAINA: I believe the Loudermill case says that

in a termination hearing of an employee you have to have both

pre-disciplinary, minimal pre-disciplinary hearings as well as

a full blown post-disciplinary hearing.

THE COURT: I may not be remembering that case but

what I do remember from your briefs is that in the usual or the

common situation where there's immediate discipline, it's

enough to give notice up front and post-disciplinary procedure

at the back end to see if you want to change your mind. That's

what I remember but I don't remember anything else.

MR. ROBAINA: The Walker case, Your Honor, also says

that a pre-disciplinary hearing need not be a full adversarial

hearing, and the failure to provide an impartial decision-maker

at the pre-disciplinary stage need not create liability so long

as the employee is provided a full hearing and --

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THE COURT: See, now you are slipping around again.

You keep slipping around to impartial decision maker. We're

going to talk about that later. Right now I'm trying to figure

out why due process requires, even with a neutral decision

maker, how does due process require a full evidentiary hearing

for employee discipline as opposed to informal procedures, talk

to the employee, look into what happened, talking to the other

faculty member, looking at the records of what happened, the

employee's own acknowledgement she had not refunded the money

that she had been ordered to do. Why does due process require

more than that?

MR. ROBAINA: It does, Your Honor, absolutely.

THE COURT: Give me a case.

MR. ROBAINA: Loudermill, Walker, Clements case, which

is also cited in my brief, Clements versus Airport Authority,

69 F.3d 321.

THE COURT: If they are in your brief I have looked at

them and you don't need to give me the cites again.

All right. Now, she had that here. She had a full

blown evidentiary hearing with witnesses, findings of fact by a

neutral panel that found that she had been insubordinate, that

was, under that procedure, deemed to be binding. But even if

it's not deemed to be binding, the chancellor drew upon it.

How is it that she's entitled to a second full blown

evidentiary hearing to overturn the first one under federal due

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process of law? That you give me no example of.

MR. ROBAINA: It's not that she's entitled to a full

evidentiary hearing. What she's entitled to -- I don't want to

antagonize you. It kind of bleeds into --

THE COURT: It's okay. I get animated. You can get

animated, too.

MR. ROBAINA: They bleed into each other. What she's

entitled to is a neutral arbiter.

THE COURT: We'll talk about that in a minute. You

don't get to slip around from one thought to another.

MR. ROBAINA: She's not entitled necessarily to a

second hearing. It's not necessary because there were binding

findings of fact and conclusions of law in the first hearing.

And as you have said earlier, it's a -- the due process is not

a sort of a stagnant thing. You can look at it. So I'm not

suggesting she needs a second hearing.

THE COURT: I hold you to that concession.

MR. ROBAINA: Okay.

THE COURT: That's passed us. You have acknowledged

that. That's no longer an issue. The third issue is there was

a biased decision maker.

MR. ROBAINA: My third issue is that she's entitled to

a neutral decision maker. She had a neutral decision maker

with respect to the findings of facts and conclusions of law.

But a neutral decision maker did not make the final decision

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with regard to the discipline.

THE COURT: Well, the discretionary aspect of what

discipline to impose for the finding of misconduct.

MR. ROBAINA: But that, Your Honor, also requires a

neutral decision maker. It's not that because they found that

she did one of the three or four things that they allege that

now they get to impose whatever discipline they want.

THE COURT: Before we get into the merits of that,

let's go to the threshold, the background issue there. You did

not plead that in your complaint, and it's no issue here. It

was raised for the first time in the Motion for Summary

Judgment and, therefore, it's not properly before the Court. I

read your reply brief which you quoted the passages in your

claim you said raises -- they didn't come close to raising that

issue.

MR. ROBAINA: Okay.

THE COURT: So that is therefore not presented, it's

forfeited, and it's not a basis to overturn your case.

MR. ROBAINA: Okay. Then let's move to the second

reason. In the notice of suspension letter, they raised a new

issue.

THE COURT: Actually, hold on a minute. I did want to

explore further your argument that there was not a neutral

decision maker. It is, as you acknowledge, and I hold you to,

that is forfeited because it's not pleaded and therefore it's

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not properly before the Court. However, let's address whether

there was any bias. Obviously, part of the problem is there is

no actual evidence of bias by this decision maker, nor was

there an opportunity for the other side to present evidence of

lack of bias because you didn't plead it. It wasn't part of

the lawsuit. But when you look at what's in your brief, I

don't see anything there other than saying, well, if you are

involved in a disciplinary proceeding once it's subject to

review by another independent group, as is very common in civil

service matters, you can't make the final decision because you

are automatically biased. That seems to be your argument.

MR. ROBAINA: That is not my argument, Your Honor.

It's not as if you are automatically biased if you are in the

same agency. That's the Withrow case. The Courts said it's

not automatic, but you look at the cases and you look at the

cases since Withrow and you see numerous cases, including a

case this year from the Arizona Supreme Court, that basically

says if you are involved in a decision to --

THE COURT: Which case is that?

MR. ROBAINA: It's Horne v --

THE COURT: I know that case. Has nothing to do with

this.

MR. ROBAINA: Well, if you are involved in the

decision to discipline.

THE COURT: Right.

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MR. ROBAINA: You can't be the arbiter of your own

case.

THE COURT: That necessarily means that any supervisor

involved with employee direction or discipline is disqualified

from making the final decision if, in fact, there is a

procedure where other people, another body has authority to

make findings of fact and those Findings of Facts are accepted.

It's hard for me to see how this means anything except that.

There is automatic bias because you started the discipline

process. The employee invoked her right to have a neutral look

at it and then now can't come back to her. Somebody else has

to make the decision. Again, give me a case that holds that.

I have looked at the cases cited in your briefs and none of

them are factually on point.

MR. ROBAINA: Your Honor, what the cases hold is that

if you develop a will to win, that's one way, that's the type

of bias that the Courts don't want.

THE COURT: There's no such evidence here.

MR. ROBAINA: It's implied.

THE COURT: It's implied because it's automatic

because she started the process.

MR. ROBAINA: If you are involved in the investigation

and the prosecution of a case and you are also the adjudicator

of the case, that's also unfair and a problem. There are

numerous cases that say that.

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THE COURT: So what you are saying then is that when

you have issues of underlying, let's call it tenure, the

federal due process prevents the person who initiated the

process or the discipline from making the final decision even

when that decision is identical to the decision of the

reviewing body that there was misconduct.

MR. ROBAINA: That's not -- but that's only one-half

of the equation, Your Honor. If they decided that there was

this much misconduct and then the other question is, what's the

reasonable punishment for it. And that's a decision that a

neutral arbiter has to make.

THE COURT: By the way, the record here is clear, the

chancellor talked with the hearing committee, and they told

them that dismissal was too hard but suspension without pay

would be okay. It is uncontroverted in the record.

MR. ROBAINA: That is incorrect, Your Honor. It is

controverted in the record. That's hearsay.

THE COURT: It's not controverted and it's not hearsay

because that's the present state of mind of those people

communicating to the commission what their state of mind was.

You could have looked into that. You could have taken

depositions. You could have gone in and said, did they say

that? You didn't do any of that.

So what we have here is the chancellor's statement of

his information about current state of mind, and that's not

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hearsay. In any event, you had the chance to controvert that

and you did not. Even apart from -- it's really not necessary

for the hearing committee to also say and we think this other

lesser discipline would be appropriate although they did. But

it's not necessary. The question is --

MR. ROBAINA: Your Honor, even the chancellor doesn't

claim that the hearing committee said that it would be a

14-month suspension.

THE COURT: Actually, I read what's there and it is

uncontroverted that they said an unpaid suspension would be

appropriate. Now, again, they don't have to have said that but

they did.

Go ahead. Now, actually, with respect to the neutral

arbiter, I guess your argument is the person who initiates

discipline can never be the one who finishes them. I looked at

all your cases. I will take another look.

MR. ROBAINA: I didn't say the person who initiates

can never be -- that's your words, Your Honor. I didn't say

the person who initiates can never be an arbiter. What I said

was that the person who is involved in basically in prosecuting

a case and in initiating a case, and is a party to the case,

cannot be the same person that decides the matter.

THE COURT: All right. Now, I think we covered the

three -- you listed your three federal due process

deficiencies. We have resolved that they are all either

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withdrawn or with respect to the neutral arbitrator issue it

was not pleaded, therefore, it's foregone. You started to say

something else, a different issue. So I want to hear whatever

you have to say.

MR. ROBAINA: The other reason that's completely

inappropriate and unfair is because under the state

proceedings, under state law, the review that you get is what

they call substantial evidence review, which means that if

there's any evidence to support the factual findings of the

arbiter, basically, then the courts in the state proceedings

will --

THE COURT: I don't recall that in your briefs, but it

doesn't surprise me that that's consistent with my general

understanding of American Standards of Judicial Review of

Agency Action, a subject on which I wrote the book.

MR. ROBAINA: Which makes it very important that the

person that makes the decision does not have a potential bias.

THE COURT: No substantial evidence means that there's

any evidence that any reasonable trier of fact could believe

the reviewing -- well, it's often courts, the reviewing court

is bound by that decision.

MR. ROBAINA: Correct.

THE COURT: I'm not sure that would apply to this kind

of discipline by the Board. Well, actually, it would.

MR. ROBAINA: It would.

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THE COURT: Because it says the finding is binding.

If it didn't have any evidence it could not be binding. So I

think you are right about that.

MR. ROBAINA: What that means, though, for due process

purposes is it really requires you to have a fair arbiter in

this thing. It can't be a party.

THE COURT: We have already covered that.

MR. ROBAINA: That's so clear in the law.

THE COURT: You started to mention something. I

interrupted you. So was there another issue that you are

arguing as a basis to win your lawsuit other than these three?

MR. ROBAINA: I want to go back to something, Your

Honor, because I don't mean to imply that I agree with your

premise that there's nothing in the complaint that she raised

these issues. I didn't file the complaint. I read the

complaint.

THE COURT: The amended complaint is the operative --

MR. ROBAINA: Amended complaint.

THE COURT: I have read every line you quoted in your

statement of facts for that, and nothing in there makes a claim

of unfair decision maker. It's just not there. Read me --

take a minute. We have all the time you need. Go through your

papers and read me the sentence or sentences in your complaint

that raises that issue.

MR. ROBAINA: "Notwithstanding the hearing committee's

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unanimous conclusion that the district failed to satisfy its

burden of proof and that Dr. Martinez should be allowed to

continue her employment, Chancellor Glasper unilaterally

discontinued her employment by suspending Dr. Martinez's

employment on March 7, 2014, without pay for 14 and-a-half

months from March 1, 2014 to May 2015. Chancellor Glasper's

rejection of the hearing committee's factual finding" --

THE COURT: Don't read so fast.

MR. ROBAINA: I'm sorry.

THE COURT: I'm looking for the document.

MR. ROBAINA: Page 7.

THE COURT: What document number?

MR. ROBAINA: Page 7 of Document 88. I'm sorry. I

didn't mean to read so fast.

THE COURT: Part of the problem here is you all filed

cross -- simultaneous cross motions for summary judgment, which

is a gigantic waste of resources. But it also gets confusing.

So Document 88.

MR. ROBAINA: At Page 7.

THE COURT: It's your brief. I'm looking for language

in your amended complaint. I know in your brief you wanted to

have this issue decided.

MR. ROBAINA: It cites language from the amended

complaint.

THE COURT: Okay. Well, actually, I did -- hold on a

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minute. Okay. That's where I read it. It's on Page 7 of your

brief. That's right.

So read me the language there that raises this issue

of biased decision maker.

MR. ROBAINA: Chancellor Glasper's -- Paragraph 30,

"Chancellor's Glasper's rejection of the hearing committee's

factual findings and unilateral imposition of a 14-month unpaid

suspension on Dr. Martinez violates the district's residential

faculty policies and flatly usurps the Board's ultimate

authority to discipline its employees."

THE COURT: Well, that's just a recitation of

procedure and an assertion of state law that says state law

requires the Board to prove that. In our earlier discussion,

you have acknowledged that's not correct and you are not making

that argument anymore.

MR. ROBAINA: Number 41, "Chancellor Glasper failed to

allow Dr. Martinez any opportunity to present evidence refuting

the new statement of charges before a neutral finder of fact."

THE COURT: Well, perhaps.

MR. ROBAINA: Page -- I'm sorry -- Paragraph 74 which

is on Page 8.

THE COURT: Oh. Wait a minute. I want to be clear.

It is undisputed that the evidence was presented before a

neutral finder of fact in the suspension proceedings, right?

MR. ROBAINA: But it also requires, Your Honor, due

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process also requires not only that the evidence be presented

before a neutral finder of fact but that a neutral arbiter

decide the case, decide what the punishment is going to be.

That's not up to the person that's bringing the allegations

against an employee. That's not the way due process works.

THE COURT: I read 41 as a challenge, patently

factually incorrect challenge to the fairness of the --

MR. ROBAINA: Number 41 is factually incorrect?

THE COURT: Of the fairness and the neutrality of the

dismissal committee's findings. But now your argument is based

on the findings of sanctionable discipline, the discretion as

to what discipline to impose is adequately raised here because

here you are saying she wanted --

MR. ROBAINA: There's another piece of this. Oh, I

know what I was going to mention to you earlier that you

reminded me of.

In the statement of charges for the suspension,

there's a new allegation.

THE COURT: That's right. Put that on hold for a

minute. I want to finish this discussion.

MR. ROBAINA: Okay.

THE COURT: In Paragraph 41 you purport to challenge

the lack of, quote, "any opportunity to present evidence

refuting the new statement of charges," close quote, which is a

direct replay of the evidence and neutrality of the first

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hearing committee. So if you are saying here, well, due

process requires that the chancellor have a redo of the same

procedure we earlier agreed, and you conceded -- it's not a

real concession because it's obvious -- that the prior fair and

neutral decision making about disciplinable conduct was fair

and neutral. And all you are saying here is she wanted to

present, quote, evidence refuting the statement of charge. The

statement of the charges is -- we'll get that here next. This

is the same stuff that was found binding the finding by the

hearing committee.

MR. ROBAINA: The statement of charges is also

discussing the new statement of charges I just mentioned to you

that has a new allegation.

THE COURT: Well, we can go to that. But before we

do, if this is what you are pointing to, this is an assertion

at most of the pleading that she had the right to present her

evidence all over again after having presented it to a fair and

neutral decision maker who found disciplinable misconduct. So

now the issue of the new charges, go ahead with that.

MR. ROBAINA: Let's -- can I finish this --

THE COURT: Go ahead.

MR. ROBAINA: -- quickly? Remember, the pleadings,

this is not a requirement that she give her exposition on due

process in the pleadings. 72, "Chancellor Glasper's decision

to suspend Dr. Martinez without pay for 14 and-a-half months

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violated the constitution of due process rights." And 74, "The

pertinent constitutional standards are longstanding, were

clearly established at the time of the suspension and included

a right to due process free of bias."

THE COURT: The closest you get to saying something

about neutral decision makers is Paragraph 41, but even that is

just challenging adequacy of fact finding what's already been

found by a fair and neutral decision.

MR. ROBAINA: What about a right of due process free

of bias?

THE COURT: Isn't that what --

MR. ROBAINA: In paragraph 74.

THE COURT: That gets closer, too. Still with respect

to what you have to plead --

MR. ROBAINA: Your Honor, the pleadings --

THE COURT: You can't just throw out a bunch of stuff

with isolated references without identifying more specifically

what you are alleging.

MR. ROBAINA: Your Honor, the pleading itself, the

amended complaint goes throughout the facts. These are just --

the issue was raised that she doesn't raise the issue of unfair

bias, so I tried to point out the paragraphs that lead to that

issue. But if you look at the amended complaint, yes, it does.

THE COURT: Under the pleading, it's not enough just

to plead a bare conclusion, any bare conclusion, including a

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bare conclusion well, there was bias here. You have to plead

some minimal facts that makes that plausible to think that all

you have here is this is the person who initiated the

discipline.

MR. ROBAINA: Judge, it doesn't seem necessary to put

the entire complaint into the reply to their motion.

THE COURT: Well, I'm not talking about your reply.

I'm talking about your complaint.

MR. ROBAINA: In the complaint itself, it discusses

what happened. And you cannot -- and the bottom line is,

Judge, for due process, you can't have the same person decide

to terminate someone and then make the decision -- I'm sorry --

to discipline someone and then make the decision as to whether

or not that discipline was fair. That doesn't work for due

process under longstanding law. It's not -- I didn't --

THE COURT: You know, another way to say this is this

sprawling complaint does not satisfy Iqbal and Twombly. It's

not just enough to throw a bunch of stuff out with conclusions

without facts that would suggest actual bias other than what I

think or thought you were arguing that it is inherently biased

in violation of due process. So, you know, the federal

pleading standards require more than that.

I labored through your complaint. That's why I came

out asking you these questions. Because there's a lot of

discussion in your complaint and in your briefs about state

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procedures. But you acknowledged to me you are not pleading

any claim under state law, so that's behind us.

MR. ROBAINA: Judge, the pleading under state law, she

did not file an appeal of the decision to suspend her. She

didn't do that. She filed a due process violation saying that

the way they went about this and their process itself violates

due process.

THE COURT: Well, you know, again, you told me you

were not pleading any violations of state law so I thought that

was behind us. But -- and hold your other thought because I

don't want to cut anything off. If we get -- if we think that,

well, you know, if you draw a whole lot of inferences of things

that weren't pleaded or weren't argued that you have

acknowledged are not part of this lawsuit, and if you are

really saying, well, the state procedure does require action by

the Board to finalize any suspension of a year or however you

want to describe it, whatever your dividing line is, that's a

proposition of state law. That's not a proposition of federal

law. Right? And it's plainly wrong because the state

procedures in 3.13 lay out a procedure for suspension. 3.15

lays out a procedure for termination. And if you can't really

terminate without complying with 3.15 you made a dead letter

3.14 which is not frankly --

MR. ROBAINA: I think I now understand where you are

going, Judge, and if I may comment on that. The fact that the

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state procedure lays out a process doesn't mean that that's the

end all be all with regard to the process. It has to comport

with federal due process requirements.

THE COURT: Yes, but what happened here unquestionably

did comport with the state procedure. The 3.15 procedure was

exhausted right through the point where the chancellor accepted

it, and the 3.13 process was richly exhausted as well. So when

you argue that, well, you really can't suspend someone for a

year because that's termination, that isn't defiance of the

plain language of 3.13 and 3.15.

MR. ROBAINA: That's the argument that -- I mean, it's

in the complaint. But --

THE COURT: You don't plead it as a cause of action

and you told me at the beginning here you are not pleading

anything as a state law cause of action.

MR. ROBAINA: I guess I don't -- I'm not trying to be

contradictory about this. What I'm saying is not that they

violated their own policy. What I'm saying is that their

policy violates the due process.

THE COURT: Okay. But we already exhausted the three

ways that might do that, and I think you have withdrawn a lot

of it.

MR. ROBAINA: Well --

THE COURT: First let's go back to, does the state

procedure require board approval for suspension of a year?

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MR. ROBAINA: I will say the state procedure doesn't

although the chancellor testified in deposition --

THE COURT: Okay. So the state procedure doesn't

require it.

MR. ROBAINA: Correct.

THE COURT: So if we draw overly generous inferences

about what you might have pleaded, there was no violation of

state procedure here. Right?

MR. ROBAINA: Correct.

THE COURT: So how can federal due -- and I don't

assume you are not arguing --

MR. ROBAINA: Well, if I may, can I --

THE COURT: How is the federal -- well --

MR. ROBAINA: Let me correct that, Judge. The

procedure requires -- and hear me out for a second. The

procedure requires that in order to suspend someone you have to

have just cause. That requires that -- that means that they

have a property interest. When you have a property interest

now federal procedure --

THE COURT: I told you five times you have a property

interest. We don't need to talk about that anymore. There's

nothing here challenging the due cause for the discipline.

It's not in your brief. It's not in your complaint. And your

briefing also does not dispute the underlying facts about her

refusal to follow an instruction to refund the monies to the

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students. There's a lot of briefing about, well, they didn't

prove that she violated the copyright law. She did violate the

instruction to refund the money.

MR. ROBAINA: That doesn't mean they can suspend her

for 14 months.

THE COURT: Why not?

MR. ROBAINA: Because --

THE COURT: It's a violation of 3. -- now I can't

remember.

MR. ROBAINA: Judge, they can't decide that is what

I'm saying to you. Chancellor Glasper cannot make the decision

there.

THE COURT: Stop. You are asserting that there was a

lack of just cause. That's what I'm talking about. And I

think I'm concluding there clearly was just cause and you

didn't even dispute the facts of the just cause. It's not in

your briefs. It's only procedural challenges in your briefs.

So when you tell me today, well, there's an underlying issue

here that they didn't really adequately prove or wasn't true

that there was just cause for termination, that is not in your

briefs. And when you say it here now it's too late. In any

event, it's plainly untrue. Disobeying a direct order from

administration to refund money to the students is

insubordination as the hearing committee found. And, by the

way, has she refunded that money even as of today?

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MR. ROBAINA: Judge, I don't believe so. But I think

that that's not relevant.

THE COURT: The record shows that she had not refunded

the money as far as the proceedings went here, but it doesn't

speak to what happened after the proceedings here.

MR. ROBAINA: I mean, I think -- can I come back to

something?

THE COURT: You certainly may. Let me wrap up that

thought. The insubordination, the refusal to follow orders

apparently persists today, and -- it persists today. Anyway,

go ahead.

MR. ROBAINA: Judge, this is not a case to

determine -- today is not a case to determine whether or not

the imposition of the 14 months was necessarily just or unjust.

What it is is the decision as to whether or not the person that

accuses her can make that determination. That's what I'm

saying.

THE COURT: I'm trying to take your stuff one at a

time and you keep slipping around from what I'm asking you to

something else. I have taken almost an hour of your time. I

need to give Mr. -- who is going to argue for the other side?

MR. ROBAINA: Can we just hit the one last item?

THE COURT: Go ahead.

MR. ROBAINA: The fact is, Your Honor, that even if

you make that determination, there's another issue here. The

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issue is that in the notice of suspension there's a new

allegation which she never got any opportunity in front of any

arbiter, not even Dr. Glasper to argue. It's a new allegation.

THE COURT: Let me help you out with that. Part of

this issue is some of these things are too elliptical. The

direct recommendation of finding of misconduct was the

insubordination of refusing to follow the orders to refund

money to students. And whether or not it was right, it was

insubordination.

This reference to the -- I don't remember the section

numbers now -- to the budgeting process is simply the predicate

for that. It's the same issue, same misconduct tracing it back

to the underlying predicate. It's not a different charge.

MR. ROBAINA: May I show you why it's a different

charge?

THE COURT: Go ahead.

MR. ROBAINA: The new allegation is that she violated

administrative Rule 1.12 and 1.12.6. And the factual

allegation is that Phoenix College determined that your course

materials charge was not included in the adopted budget or

pre-approved by the governing board. That's not --

THE COURT: I don't have that here. What was 1.6

again? 1.12.

MR. ROBAINA: 1.12.2, authorization, and 1.12.6, fees.

And the actual allegation, this is in statement of fact --

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plaintiff's statement of fact 43. The actual allegation is

that Phoenix College determined that your course materials

charge was not included in the adopted budget or pre-approved

by the governing board. That's not an allegation in the

state --

THE COURT: 1.12.6.

MR. ROBAINA: 1.12.2 and 1.12.6, and under that it

gives the factual basis.

THE COURT: But read that regulation to me again.

MR. ROBAINA: "1.12.2: Authorization. Prior to

participating in the sale of products or services, revenue and

expenditure categories must be included in a programs budget

and approved by the governing board during the annual budget

adoption process or as legally changed the first year."

"1.12.6: Fees," it says, "Fees exchanged for products

or services produced through an educational training or service

activity shall be pre-approved by the governing board." And

then it says, "Phoenix College determined that your course

materials charge was not included in the adopted budget or

pre-approved by the governing board."

THE COURT: Yes. That looks like simply getting down

to the foundation of the specific finding of misconduct which

was with respect to the charges to the students which she was

ordered to refund.

MR. ROBAINA: Judge, even if you said this was part of

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the cash handling procedure, then what he's doing here is

over -- going back to what the Board said she didn't violate.

THE COURT: No. That was the premise for the order,

the prophylactic order to give the money back, which didn't

require a finding that she had violated it before she was

insubordinate.

MR. ROBAINA: Judge, this is part --

THE COURT: I have labored through this. And part of

the challenge, and I will hear what you have to say, some of

this is a bit too elliptical but when digging through it it

appears that -- that's just taking the insubordination down to

the broader grounds of policy that supports it. But anyway, go

ahead. Is there anything else?

MR. ROBAINA: No, sir. That's a new allegation that

she did not get any opportunity to refute.

THE COURT: I think of it as the same allegation.

Anyway, go ahead, Mr. Uppal.

MR. UPPAL: Thank you, Your Honor. I want to keep

this brief.

Plaintiff has five causes of action. Well, actually

let's pare it down to three causes of action: A liberty

interest, a property interest, and a claim for declaratory

relief.

THE COURT: Well, the declaratory relief we didn't

talk about because that's a declaratory relief that says it's

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okay for her to do what copying she wants because it does not

violate copyright law right.

MR. UPPAL: That's how I understand the plaintiff's

argument.

THE COURT: Yeah. And there's plainly no --

declaratory relief is discretionary, and it would be an abuse

of discretion to do that because, first of all, it's not

apparent she's doing that anymore or intends to do it anymore

just there's no allegation of that. And in any event, it's

more than sufficient for the district to say we don't have to

win your lawsuits. You don't get to get us into a copyright

case and then make us win it. It's enough for us to be

cautious. And so there's nothing ripe. There's not even a

case or controversy. And it would be abuse of discretion to do

it, and the allegation of underlying copyright infringement

does not arise here because of the district's right to manage

its employees so they don't get to bring them into a debatable

lawsuit. So this is nothing to worry about declaratory

judgment on the copyright.

MR. UPPAL: Absolutely, Your Honor. So that takes

care of the declaratory relief claim as Your Honor just

summarized. The liberty interest claims have been waived in

the briefing. So what we're down to is the property interest

claims. And the plaintiff's real quarrel here is not with a

lack of process. Because as you can see in the briefing as

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well as the verbal presentation of opposing counsel, they have

not identified any deficient process. This is a case about, as

Your Honor said, constitutional minimums. And the

constitutional minimums have been more than satisfied. The

constitutional minimums here, Your Honor, are dictated by

Loudermill which requires nothing more than notice and an

opportunity to be heard as well as by Pickering. And I think

that the Supreme Court's admonition to trial courts in

Pickering is directly relevant to this case. In Pickering, the

Court said that we, quote, "must give employers wide discretion

and control over the management of their personnel and internal

affairs, including the prerogative to remove employees whose

conduct hinders efficient operation and to do so with

dispatch," unquote.

That's really what we're talking about. The plaintiff

does not like the result. The plaintiff had a full day due

process hearing at which she was represented by counsel, Steve

Montoya. She gave pre- and post-briefing.

THE COURT: No one accuses Mr. Montoya of being less

than zealous.

MR. UPPAL: Absolutely, Your Honor. But in addition

to an adversarial proceeding where she cross-examined -- her

counsel cross-examined numerous witnesses, experts were even

presented at this hearing. There is nothing lacking. In fact,

what happened here so far exceeds the constitutional minimum

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that really, it is not worthy of discussion. And I don't say

that lightly. I think it's borne out by the fact that

plaintiff's counsel cannot identify what the deficiency is with

respect to what the constitutional bare minimum requires.

I would like to correct one aspect of the record,

however. It is not merely that plaintiff was found to be

willfully insubordinate in refusing to issue refunds. She, to

this day, remains insubordinate. I would direct Your Honor to

defendants' statement of facts, Paragraph 37, during the

deposition in this case, plaintiff was questioned as to whether

she had made the refunds. And bear in mind when she returned

after her suspension she was reminded to make the refunds, and

she did not do so. She still doesn't do so. But yet here she

is arguing that somehow due process was not satisfied.

So, Your Honor, I really don't have much to add to

your questioning of opposing counsel but to say that there is

no violation of a due process property interest in the

plaintiff's employment whatsoever. There were binding findings

of fact here. And the binding findings of fact by the hearing

committee basically reduced to down two issues: One, the

hearing committee recommended against suspension given that the

plaintiff was a 30-year tenured employee of the district.

That's the part that the plaintiff likes, the recommendation

against termination. However, the part that she wants the

Court to overlook is the equally binding finding that she was

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willfully insubordinate. And the language of the finding of

facts by the committee was rather brutal. What they said was,

quote, that the plaintiff was willfully -- the plaintiff

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.

Everything flows from that finding of willful

insubordination. Your Honor's absolutely correct that the

issue of a neutral decision maker has been waived and forfeited

and was never properly pled and does not satisfy the Iqbal/

Twombly standards. But bearing down to a more fundamental

level, the plaintiff was stuck with that finding she was

willfully insubordinate. That finding of fact is binding on

the chancellor to --

THE COURT: Whether or not it was binding under the

regs themselves is a result of unquestionably richly adequate

procedures.

MR. UPPAL: Absolutely. So what happened to the

plaintiff is she was suspended for 14 months. She was not

permanently separated from employment. There was absolute just

cause for her 14-month suspension given not only the fact that

she -- there was a finding of willful insubordination but,

again, one could even argue that that 14-month suspension --

THE COURT: I thought it was 13 months from April to

May.

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MR. UPPAL: That's right. It's 14 if you count

partial months, probably 13 months.

THE COURT: April 15 to May 15, wasn't it?

MR. UPPAL: Yes, Your Honor.

THE COURT: So that's 13 months.

MR. UPPAL: Absolutely, Your Honor. Perhaps that's a

misstatement on my part, but my point here is with the benefit

of hindsight that suspension probably was inadequate. Because

it was not enough to convey the point to the plaintiff that she

should actually make the refunds. She's here in the audience

today. She remains insubordinate. So there really can be

no -- there is no issue to present to the jury about inadequacy

of due process. All the procedures were followed. She

received far more than the constitutional minimum. She remains

insubordinate and this case, therefore, should result, I submit

to the Court, in summary judgment for MCCD and Chancellor

Glasper.

I have nothing else, Your Honor, unless Your Honor has

questions.

THE COURT: You know, something just occurred to me.

Provided that there's fair opportunity to dispute whether or

not she even now has not refunded the monies, either she admits

it or she disputes it, some adequate procedure to resolve that,

would the chancellor be able to suspend her again for another

year?

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MR. UPPAL: Absolutely, Your Honor.

THE COURT: If they wanted to terminate her, of course

they would have to go back to the 3.15 ultimately culminating

in more decision making.

MR. UPPAL: That's right. That's absolutely correct.

If anything, this particular plaintiff has been treated with

extreme leniency by her employer. Thank you, Your Honor.

THE COURT: Any reply.

MR. ROBAINA: Your Honor, Pickering is a First

Amendment case.

THE COURT: What was the date on Pickering.

MR. ROBAINA: It was, I believe, 19 -- I can't

remember. It was a First Amendment case. It has nothing to do

with this type of allegation with respect to due process.

THE COURT: Is that the school case from 1968?

MR. ROBAINA: I believe so, Pickering re: something in

the newspapers and then was terminated.

THE COURT: That case was the subject of my first year

law school moot court case of 46 years ago. So I'm an expert

on that.

MR. ROBAINA: It's hard to, I guess, without restating

everything that we have already discussed, fundamentally, Your

Honor, whether or not you believe that she should be

disciplined because she didn't pay the $11 back to the students

for the copies that she made for them, that's really not the

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issue in this case. The issue in this case is whether the

person that brought the case against her can ultimately be the

arbiter of what the punishment is against her. And, you know,

it's a -- I think the real issue is whether or not this case

falls within the Withrow case or whether it falls outside the

Withrow case, the Supreme Court case. And I think there's a

lot of case law that indicates, look, you have situations like,

for instance, within the National Labor Relations Board where

the same agency investigates, prosecutes, and makes judicial

determinations but it's not the same person within those

agencies. And there's a lot of case law that talks about the

difference between that and the person that's making

allegations against someone and involved in that now becoming

the arbiter of whether or not -- what the punishment for

something like that is.

THE COURT: Is there any dispute that she was

insubordinate at the time of these proceedings?

MR. ROBAINA: No. It's binding.

THE COURT: And is there any dispute that even at the

end of the proceedings she remained insubordinate?

MR. ROBAINA: Your Honor, I'm going to answer your

question because you are asking me. I don't think that there's

any dispute regarding that. I just don't think it's relevant.

THE COURT: In her deposition which is after all this

was done, even then she remained insubordinate, right?

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MR. ROBAINA: But you are putting the cart before the

horse here. If in this case if we did a jury trial and you did

everything that happens in a jury trial and then for some

reason you decided to retire and I was made federal judge and

decided this case, not that I ever would, could be, but that's

the same thing.

THE COURT: Ordinary personnel matters are not held to

the standard of judicial process.

MR. ROBAINA: But, Your Honor, due process has --

there is -- it is much more developed than what I believe you

are giving it credit for. They can't just have a

pre-disciplinary hearing with these people that are involved in

the --

THE COURT: Isn't it the case that she had the

opportunity and she took advantage of it to have every

pre-hearing and during hearing communication she wanted to

anybody including asking the Board the intervene repeatedly,

which they never elected to do?

MR. ROBAINA: Yes. With regard to the first part

that's the beginnings of due process.

THE COURT: And she had the process with the

administration to say anything she wanted to anybody, right?

MR. ROBAINA: And that's the first half of due

process. In the first half of due process you don't have to

have a neutral arbiter. It can be somebody who is not neutral.

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Many times we see it because we represent law enforcement. So

in the beginning, they give you the allegations against the

police officer, for instance, and you then you go meet with the

sheriff or police chief or whoever. The sheriff or the police

chief then decides whether or not they want to go forward with

any allegations, and then when that's done and they do go

forward with it you get a full-blown evidentiary hearing for

somebody that's neutral.

THE COURT: How is it even rational to say that the

chancellor was biased when he accepted the findings of the

hearing committee, not to suspend -- not to terminate her.

That's just irrational. If you -- that's evidence of his lack

of bias.

MR. ROBAINA: Let me give you an example. And it's in

the evidence. In the notice of suspension he says, twice, in

the notice of suspension, he says, I'm going to suspend you for

14 months or you can retire.

THE COURT: In which event, she would not be suspended

until the end of the year. She would continue to draw a salary

until then.

MR. ROBAINA: What do you mean?

THE COURT: That was a concession.

MR. ROBAINA: I don't understand.

THE COURT: The notice that says or she can retire

says if she made that election then she would remain on paid

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status to the end of May or middle of May or whatever as

opposed to having -- going on unpaid status on April 15th.

That's what that said. We'll leave you on, if you are going to

retire anyway, we'll leave you on paid status until April 15

instead of putting you on unpaid status.

MR. ROBAINA: The other piece of that was when they

put her on suspension they gave her COBRA rights.

THE COURT: So what?

MR. ROBAINA: It's not -- this is not -- you are

taking it -- you are giving it too much credit for --

THE COURT: Well, you made the point that they offered

to keep her on for an extra month if she chose to retire. I

don't know what you get out of that but I'm trying to correct

you as to what they actually did.

MR. ROBAINA: All I'm saying is, Judge, when you

are -- the -- I believe that you are suggesting that they did

that as a favor to her. It's not a favor to her, whereas --

THE COURT: I don't see what you are making out of

that. What are you making out of that?

MR. ROBAINA: I'm just saying they gave her a

suspension -- by the way, just so you know, we're talking about

all kinds of things that are -- that, you know, the fact that

it was a -- it started in April and ended in May, she's on a

nine-month salary which could be a 12-month salary. The real

ramification of that is she doesn't get paid from April until

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fall of 2015 and she gets no benefits from April to the fall of

2015.

THE COURT: You know, my understanding about teachers

is they can choose to be paid on a nine-month basis or 12-month

basis.

MR. ROBAINA: Right. Sort of getting off --

THE COURT: But it's the same amount of pay for nine

months work, right?

MR. ROBAINA: Correct.

THE COURT: So I don't see where that's going.

MR. ROBAINA: I'm just saying this is not an -- I'm

losing track of my -- it's getting long.

But this is a due process case and they have to have

fair due process. You have to have a fair and impartial

decision maker at not just the fact-finding stage but also the

decision making stage. That's what's lacking here, Judge. And

it's clear the due process has been very, very developed. It's

not just the fact that she got to -- that she took it upon

herself to try to get the Board to do something. That doesn't

mean that somehow they gave her due process.

THE COURT: They don't owe her any process. The

process was owed at the administration and chancellor level and

she got all that. The Board didn't have to intervene. She had

the opportunity to ask them to intervene. She argued twice and

wrote letters. That has nothing to do with due process because

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they don't owe her anything constitutionally or under state

law.

MR. ROBAINA: Constitutionally, they owe her the right

to a neutral arbiter. The fact that they wouldn't give her

somebody.

THE COURT: Whenever we deal with an issue you slip to

something else.

Anyway, I think I'd like to go to a retirement lunch

for a lawyer over at the prosecutor -- at the U.S. Attorney's

Office and we have had an hour and 45 minutes. Been going a

long time, hour and 15 minutes.

So very well. The motions are taken under advisement.

One thing I learned from this is I'm going to put in my case

management order that simultaneous cross motions are not

allowed. If both sides want to file motions, they should

confer as to who will go first and everybody gets two briefs.

And if they can't agree I would have the plaintiff go first.

Motions are taken under advisement. And we'll be in

recess.

(Proceeding concluded at 11:50 a.m.)

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C E R T I F I C A T E

I, LAURIE A. ADAMS, do hereby certify that I am duly

appointed and qualified to act as Official Court Reporter for

the United States District Court for the District of Arizona.

I FURTHER CERTIFY that the foregoing pages constitute

a full, true, and accurate transcript of all of that portion of

the proceedings contained herein, had in the above-entitled

cause on the date specified therein, and that said transcript

was prepared under my direction and control.

DATED at Phoenix, Arizona, this 9th day of January,

2018.

s/Laurie A. Adams

_______________________________

Laurie A. Adams, RMR, CRR

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