FISHER & PHILLIPS LLP

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Phoenix, Arizona 85004-2330

(602) 281-3400

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UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

Cleopatria Martinez,

Plaintiff,

v.

Maricopa County Community College 

District,

Defendant.

No. CV 12-00702-PHX-DGC

DEFENDANT’S NOTICE OF 

MOTION AND MOTION FOR 

SUMMARY JUDGMENT

(Oral Argument Requested)

Defendant Maricopa County Community College District (“Defendant” or 

“MCCCD”) hereby moves for summary judgment in the above-captioned matter. 

MCCCD is entitled to summary judgment because Plaintiff Cleopatria Martinez

(“Plaintiff” or “Martinez”) cannot state actionable claims for national origin or race 

discrimination, hostile work environment, or retaliation. This motion is supported by the 

attached Memorandum of Points and Authorities, MCCCD’s Separate Statement of 

Facts filed concurrently herewith, all pleadings and papers on file, and such matters as 

may be introduced at the hearing on this motion.

MEMORANDUM OF POINTS AND AUTHORITIES

I. INTRODUCTION

Plaintiff is employed by MCCCD as a math instructor. This case arises out of 

Pavneet Singh Uppal, SBN 016805

Shayna H. Balch, SBN 024852

FISHER & PHILLIPS LLP

201 E. Washington Street, Suite 1450

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Telephone: (602) 281-3400

Fax: (602) 281-3401

puppal@laborlawyers.com

sbalch@laborlawyers.com

Attorneys for Defendant Maricopa County

Community College District

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201 E. Washington Street, Suite 1450

Phoenix, Arizona 85004-2330

(602) 281-3400

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Plaintiff’s obstinate refusal to comply by MCCCD policies, applicable federal copyright 

laws, Family Educational Rights & Privacy Act (“FERPA”) requirements, and 

regulations relating to the supervision of work study students. Plaintiff’s conduct 

exposed MCCCD to a substantial risk of a copyright infringement claim and/or liability 

for FERPA violations. Accordingly, MCCCD was left with no choice but to put certain

preventative measures in place in order to mitigate the risk of legal liability. Plaintiff 

filed the instant lawsuit based upon her apparent disagreement with these measures.

Plaintiff’s Complaint asserts that she was subjected to national origin 

discrimination, harassment, and retaliation in violation of Title VII1and race

discrimination, harassment, and retaliation in violation of 42 U.S.C. § 1983. [DSOF ¶ 5] 

All of the Plaintiff’s claims fail as a matter of law. Plaintiff’s Title VII national origin 

claims are not actionable because: (1) she failed to file her lawsuit within the statutory 

90-day limitations period; (2) she cannot establish her prima facie case; (3) MCCCD 

took prompt remedial action once it learned of Plaintiff’s claims; and (4) MCCCD had 

legitimate, nondiscriminatory and nonretaliatory reasons for its actions based on 

Plaintiff’s continuing refusal to comply with federal copyright and FERPA laws. 

Likewise, the § 1983 race claims fails because: (1) there is no allegation of any 

widespread MCCCD polices or practices giving rise to § 1983 claims; (2) Plaintiff 

cannot establish that MCCCD intentionally subjected her to discrimination on the basis 

of her race; and (3) MCCCD had legitimate, nondiscriminatory and nonretaliatory 

reasons for its actions. Accordingly, Plaintiff’s claims should be dismissed with 

prejudice and full summary judgment should be awarded to MCCCD.

II. STATEMENT OF ISSUES TO BE DECIDED

1) Whether Plaintiff’s Title VII claims are time barred?

 

1Notably, although Plaintiff testified under oath that she considered herself to be of 

Mexican-American national origin, Plaintiff’s Complaint asserts that she is Venezuelan. 

Dkt. 1 (Complaint, p. 9 ¶ H). Plaintiff’s Complaint is devoid of any reference to 

Mexican or Mexican-American national origin. Dkt. 1.

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201 E. Washington Street, Suite 1450

Phoenix, Arizona 85004-2330

(602) 281-3400

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2) Whether MCCCD discriminated against Plaintiff on the basis of her national 

origin and/or race?

3) Whether Plaintiff was subjected to a hostile work environment on the basis of 

her national origin and/or race?

4) Whether MCCCD retaliated against Plaintiff on the basis of her purported 

protected activities?

5) Whether punitive damages are recoverable?

III. FACTUAL BACKGROUND

A. Plaintiff Did Not Comply With Copyright Requirements.

In early 2010, Phoenix College (one of ten community colleges within MCCCD) 

discovered that Plaintiff had exposed MCCCD to a substantial risk of liability for 

copyright infringement.

2

 [DSOF ¶ 17]. Instead of requiring her math students to 

purchase copyrighted textbooks, Plaintiff prepared her own course materials which she 

distributed to her students free of charge. [DSOF ¶ 8]. Plaintiff called these course 

materials her “Lecture Notes.” [DSOF ¶ 8] In preparing these course materials, Plaintiff 

directly copied math problems from copyright protected textbooks and inserted them 

into her course materials. She did so without providing attribution to the textbook 

publishers and/or authors. [DSOF ¶ 9-10]. For example, in Plaintiff’s Basic Arithmetic 

(MAT082) course, Plaintiff copied problems directly from a textbook entitled “Basic 

Mathematics” and inserted them into her “MAT 082 Basic Arithmetic Spring 2010”

course materials which she distributed to students. [DSOF ¶ 11]. An excerpted 

comparison is set forth below:

 

2

Plaintiff began working at Phoenix College (“PC”) in 1995. [DSOF ¶ 6]. She is still 

employed by MCCCD and has always served as a math professor. [DSOF ¶ 6] From 

time to time, however, Plaintiff has served in a variety of additional roles. For example, 

from 2002 through 2005, Plaintiff served as the Math Department Chair. [DSOF ¶ 6] 

Plaintiff also served on various committees including PC’s Title V Advisory Committee 

from 2002 through 2009 (for PC’s 1998 grant) and again from 2009 through 2013 (for 

PC’s 2008 grant). Prior to working at PC, Plaintiff worked at Scottsdale Community 

College (another college within MCCCD). [DSOF ¶ 6].

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Basic Mathematics Textbook MAT082 Lecture Notes Basic Mathematics Textbook MAT082 Lecture Notes

By: Charles P. McKeague, p. 285 Prepared by Plaintiff, p. 49 By: Charles P. McKeague, p. 289 Prepared by Plaintiff, p. 50

[DSOF ¶ 11] (full-sized versions are attached at DSOF ¶ 11, Exh. 17). Similarly, 

Plaintiff copied problems directly from the Sullivan & Sullivan “Precalculus” textbook 

and inserted them into her “MAT182 Trigonometry Spring 2010” course materials. 

[DSOF ¶ 12]. An excerpted comparison is set forth below:

 Precalculus Textbook MAT 182 Lecture Notes Precalculus Textbook

 By: Sullivan & Sullivan, p. 394 Prepared by Plaintiff, p. 22 By: Sullivan & Sullivan, p. 393

[DSOF ¶ 12] (full-sized versions are attached at DSOF ¶ 12, Exh. 19). The above are 

but a few examples of Plaintiff’s misappropriation of copyright protected materials. 

Additional examples of Plaintiff’s verbatim copying from copyright protected textbooks 

have been identified in MCCCD’s Expert Report. [DSOF ¶ 14]. The fact that Plaintiff 

engaged in this behavior is not in dispute. At deposition, Plaintiff openly admitted to 

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instructing her federal work study students to copy problems directly from the Sullivan 

& Sullivan textbook and to insert them into her course materials. [DSOF ¶ 15]. 

Plaintiff’s sole excuse for engaging in this behavior is that she “didn’t know” that her 

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

what she was doing. [DSOF ¶ 16]. Of course, any such feigned or even actual 

ignorance of the law is no defense. Lambert v. People of the State of California, 355 

U.S. 225 (1957).

On or around January 12, 2010, MCCCD’s Vice President of Academic Services,

Ronnie Elliot, sent Plaintiff an email notifying her that PC had red flagged items that 

Plaintiff had printed for the Fall 2009 and Spring 2010 semesters.3 [DSOF ¶ 18]. 

Following Elliot’s email, MCCCD administration repeatedly explained its copyright 

concerns to Plaintiff. [DSOF ¶ 19]. Several communications are summarized below: 

January 26, 2010: Elliot sent Plaintiff an email outlining MCCCD’s concerns 

regarding Plaintiff’s potential copyright infringement. [DSOF ¶ 19]

January 28, 2010: MCCCD in-house-counsel Maggie McConnell discussed 

copyright issues with Plaintiff telephonically. [DSOF ¶ 19]

February 5, 2010: Vice President of Academic Affairs Casandara Kakar, 

Interim Vice President of Administrative Services Paul DeRose, and Plaintiff 

met to discuss copyright concerns. [DSOF ¶ 19]

MCCCD also held a copyright workshop on March 1, 2010 at PC that Plaintiff 

chose not to attend. [DSOF ¶ 20] Unfortunately, despite repeated counseling attempts 

by MCCCD management, Plaintiff refused to comply with federal copyright laws. 

[DSOF ¶ 21]. As a result of Plaintiff’s continuing misconduct and the unacceptable 

legal risk that her actions presented, MCCCD was left with no choice but to impose 

restrictions on Plaintiff’s photocopying privileges. [DSOF ¶ 21]. Normally, a professor 

at PC is allowed to request photocopies of materials to be used for instruction directly 

 

3

These materials were “red flagged” by IKON representatives who contacted Ronnie 

Elliot to notify her that Plaintiff had submitted a photocopy request for thousands of 

pages which contained material that appeared to have been taken from published 

textbooks. [DSOF ¶ 17-18].

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Phoenix, Arizona 85004-2330

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from PC’s on-campus copy service, IKON. [DSOF ¶ 22]. However, because of 

Plaintiff’s propensity for misusing copyrighted materials, her copying privileges were 

revoked on April 2, 2010. Following the revocation, Plaintiff was required to submit her 

copy requests to Math Department Chairperson Joe Sueyoshi4so that he could review 

her materials for possible copyright violations. [DSOF ¶ 22]. This procedure was put 

into effect because Plaintiff’s practice of misusing copyright protected materials 

presented a substantial risk of legal liability. [DSOF ¶ 23].

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

highlight the seriousness of this matter for Plaintiff. [DSOF ¶ 24]. Instead of complying 

with the newly imposed copy restrictions, Plaintiff continued to disregard applicable 

copyright laws and actually tried to circumvent the copy restrictions. [DSOF ¶ 24]. For 

example, on or around April 19, 2010, Plaintiff attempted to bypass the copy restrictions 

by having an adjunct math professor, Johnny Santellan, make 24 sets of copies of her 

“Lecture Notes” for distribution to her math students. [DSOF ¶ 25]. At deposition, 

Plaintiff admitted that she asked Santellan to make these copies without first obtaining 

approval from the Math Department Chairperson. [DSOF ¶ 25]. There were also 

repeated instances where Plaintiff bypassed the approval process by printing multiple 

copies of her “Lecture Notes” directly to the math department’s laser printer. [DSOF ¶

26].

As a result of Plaintiff’s ongoing disregard of the rights of copyright holders and 

her numerous attempts to bypass the copy restrictions, MCCCD sought a legal opinion 

from an outside copyright expert, attorney Sean Garrison. [DSOF ¶ 28]. This expert 

advised MCCCD that “significant portions of [Plaintiff’s] Course Materials have been 

copied from other [copyrighted] sources” and advised MCCCD to cease further 

 

4

The Math Department Chair is an elected position. [DSOF ¶ 27]. Each Math 

Department Chair serves for a three year term. [DSOF ¶ 27]. Sueyoshi’s term 

commenced 2008 and is scheduled to run through 2014. [DSOF ¶ 27]. Plaintiff 

previously served as the Math Department Chair from 2002 through 2004. [DSOF ¶ 6].

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Phoenix, Arizona 85004-2330

(602) 281-3400

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distribution or use of Plaintiff’s course materials because they presented a “significant 

risk of [copyright] infringement.” [DSOF ¶30]. In reliance upon the expert, PC

President Anna Solley issued a December 9, 2010 directive5that imposed further 

restrictions on Plaintiff’s copying privileges. [DSOF ¶ 33] Specifically, the December 

9, 2010 Directive prohibits Plaintiff from utilizing any course materials of her own

creation. [DSOF ¶ 34] Instead, Plaintiff is required to only use course materials that are 

“approved by the math department” or that are “available in the bookstore for sale to 

students and that are authored by persons other than [Plaintiff].” The Directive further 

requires Plaintiff to submit her photocopy requests to the Math Department Chair for his 

approval. [DSOF ¶ 34].

B. Plaintiff Did Not Comply With FERPA Requirements.

In addition to misusing copyright-protected materials, Plaintiff also apparently 

saw no need to comply with applicable FERPA regulations which govern educational 

institutions such as MCCCD. [DSOF ¶ 38]. One of the most basic requirements of 

FERPA is the obligation to preserve confidential student data (i.e., student names, 

addresses, dates of birth, social security numbers, and grades). See 20 U.S.C. 1232g, et. 

seq.; see also 34 C.F.R. Part 99. Plaintiff repeatedly breached her obligation to 

safeguard FERPA protected materials by providing her federal work study students with 

unmonitored access to her MCCCD office and her MCCCD issued computers which 

contained confidential student information. [DSOF ¶ 39] Plaintiff further violated 

FERPA by permitting her work study students to grade student papers.6 [DSOF ¶ 40]. 

 

5

It is important to note that MCCCD administration continued to have discussions with 

Plaintiff regarding her potential copyright violations through the issuance of the 

December 9, 2010 directive. [DSOF ¶ 35]. For example, MCCCD administration 

discussed copyright concerns with Plaintiff on April 8, 2010, August 20, 2010, August 

26, 2010. [DSOF ¶ 35]. Moreover, on April 15, 2010, PC Librarian Ann Roselle 

conducted a personalized one-on-one copyright training session with Plaintiff. [DSOF 

¶ 36].

6At deposition, Plaintiff conceded that MCCCD was required to “protect the privacy of 

the student in terms of not letting [confidential] information out freely.” [DSOF ¶ 43]. 

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In addition, Plaintiff also breached her duty of confidentiality under FERPA by allowing 

her laptop computer to be used by an unauthorized individual with the last name 

“Martinez” (presumably her child). [DSOF ¶ 40]. In or around Fall of 2009, routine 

maintenance by MCCCD IT personnel showed that an illegal file sharing program called 

LimeWire had been installed on Plaintiff’s laptop computer. [DSOF ¶ 40] The 

maintenance further showed that a high school level homework assignment authored by 

an individual with the last name “Martinez” was present on Plaintiff’s MCCCD issued 

laptop. [DSOF ¶ 42-44]. As a result of these audit findings, MCCCD’s IT Department 

reasonably concluded that Plaintiff had improperly permitted an unauthorized user to 

access her MCCCD laptop computer. [DSOF ¶ 45]. 

Plaintiff’s failure to safeguard confidential information also extended to her 

coworkers. In September 2009, PC janitor Verna Daubney found dozens of manila 

folders containing confidential faculty applicant information (including social security 

numbers and school transcripts) in Plaintiff’s office garbage can. [DSOF ¶ 46]. The 

disposal of these materials in this manner was a direct violation of MCCCD’s policies 

and procedures. [DSOF ¶ 47]. Daubney promptly brought this discovery to the 

attention of PC administration which had to notify the affected faculty members about 

the breach of confidentiality. [DSOF ¶ 48] The faculty members whose information 

was improperly disposed of were understandably upset, demanded that PC pay for 12 

months of credit monitoring, and requested that Plaintiff be disciplined. [DSOF ¶ 49].

Finally, Plaintiff failed to properly supervise her work study students. Federal 

regulations also require that work study students be properly supervised. [DSOF ¶ 50]. 

See 34 C.F.R. § 675.20. MCCCD observed that Plaintiff had a practice of not managing 

federal work study students and allowing them to work in her office without monitoring 

or supervision. [DSOF ¶ 50]. It is undisputed that Plaintiff’s work study students often 

worked in her office, in the math zone tutoring area, and in the library. [DSOF ¶ 51]. 

 

Plaintiff also testified that she understood that MCCCD could face consequences if the 

information was improperly disclosed. [DSOF ¶ 43].

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(602) 281-3400

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Numerous PC math department faculty members saw Plaintiff’s work study students in 

Plaintiff’s office without any supervision (where they had access to confidential student 

information and course examinations)—often times while Plaintiff was in class or even 

on vacation. [DSOF ¶ 52]. Once this lack of supervision was brought to the attention of 

PC, the work study students were removed from Plaintiff’s supervision. [DSOF ¶ 52]. 

Later, work study students were removed from all faculty at PC. [DSOF ¶ 52]. 

IV. LEGAL ARGUMENT

A. Plaintiff’s Title VII Claims Are Time Barred.

It is well established that a Plaintiff asserting a Title VII claim must file an action 

within ninety days of receiving her notice of right to sue. 42 U.S.C. § 2000e-5(f)(1). 

“This ninety-day time period is a statute of limitations.” Nelmida v. Shelly Eurocars, 

Inc., 112 F.3d 380, 383 (9th Cir. 1997). Here, although Plaintiff’s notice of right to sue 

is dated December 22, 2011, she did not file her lawsuit against MCCCD until April 1, 

2012 (101 days after the notice was issued). [DSOF ¶ 5]. Plaintiff may contend that 

her claims are timely because she did not actually receive the notice of right to sue until 

January 3, 2012 (exactly 90 days before she filed her lawsuit). However, the Ninth 

Circuit has expressly held that the 90-day limitations period begins to run from “when 

delivery of the right to sue notice was [first] attempted at the address of record with the 

EEOC.” Nelmida, 112 F.3d at 384; see also Vargas v. Web Service Co., 36 F. Supp. 2d 

1173, 1176 (D. Ariz. 1998). Here, it is undisputed that the notice of right to sue was sent 

to Plaintiff via certified mail on December 22, 2011 and that the United States Postal 

service made delivery attempts on December 24, 2011 and December 31, 2011. [DSOF 

¶ 3-4].7 Accordingly, Plaintiff was required to file the instant action no later than 

March 23, 2012 (90 days from December 24, 2011). The complaint, however, was not 

filed until April 2, 2012. [DSOF ¶ 5]. Plaintiff’s Title VII claims are, therefore, timebarred.

 

7

The authenticity of the USPS tracking document is undisputed. [DSOF ¶ 4]

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B. Even Assuming, Arguendo, That Plaintiff’s Title VII Claims Are Not 

Time Barred, They Fail As A Matter Of Law.

Plaintiff contends that she was subjected to national origin8discrimination,

harassment, and retaliation in violation of Title VII. [DSOF ¶ 5]. However, for the 

reasons set forth below, Plaintiff’s claims are not actionable as a matter of law.

1. Plaintiff Cannot Establish A Prima Facie Case Of National 

Origin Discrimination.

Plaintiff’s national origin discrimination claim stems from her allegations that PC 

President Anna Solley, Vice President Casandra Kakar, and Math Department Chair Joe 

Sueyoshi discriminated against her when she: (1) was not selected for inclusion on the 

PC Title V Grant Advisory Committee9; (2) was subjected to “increased scrutiny” with 

respect to her “supervision and management of [federal] work study students”; (3) was 

accused of violating PC’s Technology Resource Standards; (4) was accused of “putting 

sensitive materials in the trash as opposed to shredding the documents”; and (5) was 

subjected to copy restrictions. [DSOF ¶ 54] However, Plaintiff cannot state a prima 

 

8Neither Plaintiff’s Complaint nor her EEOC charge allege Title VII race discrimination. 

[DSOF ¶ 1 and 5]

9

Title V provides federal grants to support educational institutions that serve 

predominately Hispanic and low income students. [DSOF ¶ 74]. It is referred to as a 

“Hispanic Serving Institutions Grant” (“HSI Grant”). Id. PC is eligible for Title V 

funding and has received two separate Title V grants. Id. The first grant was awarded in 

1998 and ran through 2003. Id. The second grant was awarded in 2008 and will end in 

September 2013. Id. The use of Title V funds is governed by statutory requirements. 

[DSOF ¶ 75]. Once an institution is awarded a Title V grant, the institution must spend 

the funds in accordance with the grant proposal. In this case, PC was required to use the 

funds for Science, Technology, Engineering, and Math (“STEM”) subjects in addition to 

select English and Reading courses. Id. Since the grant is an Institutional Services 

(versus Student Services) grant, funds must be used to benefit HSI institutions as a 

whole. Id. Indeed, the U.S. Department of Education’s website specifically states that 

“The Title V Program is NOT a scholarship or fellowship program for individuals or for 

research. The program is designed to support institutions of higher education that are 

HSIs.” http://www2.ed.gov/programs/idueshsi/index.html. Id. (emphasis in original). 

In response to obtaining Title V grants in 1998 and 2008, PC developed “Title V Grant 

Advisory Committees” to make recommendations as to the use of funds and to oversee 

the distribution process. Id. [DSOF ¶ 26].

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facie case because she cannot establish that any of these purported acts constitute 

adverse employment actions. Nor can she prove that any of the purported acts were 

attributable to her Mexican national origin. Finally, MCCCD had legitimate 

nondiscriminatory reasons for its actions.

In the context of a Title VII discrimination claim, “an adverse employment action 

is one that materially affect[s] the compensation, terms, conditions, or privileges of 

employment.” Davis v. Team Elec. Co., 520 F.3d 1080, 1089 (9th Cir. 2008) (internal 

quotations omitted). Here, it is undisputed that the above-referenced alleged acts never 

resulted in a decrease in pay, change in hours, or change in job responsibilities. [DSOF 

¶ 55]. Rather, Plaintiff merely disliked the fact that she was subjected to copy 

restrictions—which were imposed to reduce the risk of a copyright infringement claim. 

Likewise, mere increased scrutiny and/or disciplinary measures that do not result in a 

change in job terms do not constitute an actionable adverse employment action. See 

Kortan v. Cal. Youth Auth., 217 F.3d 1104, 1113 (9th Cir. 2000) (finding that a negative 

evaluation was not an adverse employment action where “[plaintiff] was not demoted, 

was not stripped of work responsibilities, was not handed different or more burdensome 

work responsibilities, was not fired or suspended, was not denied any raises, and was not 

reduced in salary or in any other benefit”); see also Byrd v. Donahoe, No. C 11-4230 RS 

(N.D. Cal. May 10, 2013) (citing Ellerth v. Burlington Industries, Inc., 524 U.S. 742, 

761 (1998)) (holding that an employer’s restriction of an employee’s use of a workplace 

resource that “was at most a convenience, not a necessity ... [is not a] significant change 

in employment status” cognizable under Title VII). Accordingly, Plaintiff cannot 

establish that she was subjected to any adverse employment actions. 

In addition, there is no causal nexus between any of the alleged adverse acts and 

Plaintiff’s Mexican national origin. Plaintiff’s allegations of discrimination appear to be 

based upon nothing more than her own subjective beliefs. Such speculation and 

conjecture is not sufficient to withstand summary judgment. Arpin v. Santa Clara Valley 

Transp. Agency, 261 F.3d 912, 922 (9th Cir. 2001). Indeed, MCCCD has also 

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reprimanded a Caucasian employee who misused copyrighted materials. After Dmitri 

Logvinenko (a Caucasian male of Russian descent) tried to use course materials that may 

have contained copyright protected information and problems, Sueyoshi reprimanded 

Logvinenko and instructed him to: (1) immediately remove the materials from his course 

website; and (2) begin using Math Department approved course materials. [DSOF ¶ 56] 

The key difference, however, is that Logvinenko discontinued his unapproved use of 

copyrighted works, immediately complied with Sueyoshi’s directive, and began using

the approved textbook for his course. [DSOF ¶57]. Moreover, it is important to note 

that while there were at least two other Hispanic/Mexican-American faculty members in 

the math department (Veronica Herrera and Maria Herrera-Bill), neither of these 

individuals were subjected to any of the restrictions imposed on Plaintiff. [DSOF ¶ 58]. 

Finally, while Plaintiff may not have liked the reprimands and copy restrictions,

MCCCD had legitimate, nondiscrimatory reasons for taking these actions. Specifically, 

MCCCD’s desire to protect itself from litigation that might result from Plaintiff’s 

noncompliance with copyright and FERPA-related restrictions constituted a legitimate 

nondiscriminatory reason for its actions. [DSOF ¶ 38-53]. For example, Plaintiff’s 

misuse of copyrighted math problems subjected MCCCD to an unreasonable risk of a 

copyright infringement claim. [DSOF ¶ 17-37] This risk was so great that MCCCD 

retained the services of a copyright expert, Attorney Sean Garrison, who advised 

MCCCD that: (1) significant portions of Plaintiff’s “Lecture Notes” had been copied 

verbatim from copyright protected textbooks; and (2) allowing Plaintiff to continue use 

or distribution of her “Lecture Notes” would subject MCCCD to an unreasonable risk of 

a copyright infringement claim. [DSOF ¶ 38-41]; see also 17 U.S.C. § 101, et. seq. 

Similarly, Plaintiff violated FERPA by permitting her federal work study students to 

access confidential student data, allowing them to grade student papers, and permitting 

an unauthorized user to access her MCCCD laptop (which contained confidential student 

data). [DSOF ¶ 38-53]; 20 U.S.C. 1232g, et. seq.; see also 34 C.F.R. Part 99. Plaintiff’s 

failure to properly supervise her work study students also violated federal regulations 

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relating to the supervision of federal work study students. See 34 C.F.R. § 675.20. 

Accordingly, Plaintiff’s national origin discrimination claim fails as a matter of law. 

2. Plaintiff Cannot Establish A Prima Facie Case of National 

Origin Harassment.

Title VII is not a “general civility code.” Faragher v. City of Boca Raton, 524 

U.S. 775, 788 (1998). Here, Plaintiff’s harassment claim is based on the very same 

allegations as her national origin discrimination claim. As discussed above in Section 

IV(B)(1), supra, even assuming the truthfulness of these allegations for purposes of 

summary judgment, they do not demonstrate any discriminatory animus towards 

Plaintiff on the basis of her national origin. 

Plaintiff’s national origin harassment claim further fails as a matter of law 

because the alleged conduct was not sufficiently severe or pervasive to alter the terms 

and conditions of her employment. Title VII “forbids only behavior so objectively 

offensive as to alter the ‘conditions’ of the victim’s employment.” See Oncale, 523 U.S. 

at 80-81. In fact, courts have repeatedly rejected hostile work environment claims that 

involved conduct that was far more offensive than the allegations of harassment set forth 

by Plaintiff. In Sanchez v. City of Santa Ana, 936 F.2d 1027 (9th Cir. 1991), the Ninth 

Circuit upheld the dismissal of a plaintiff’s hostile work environment claim despite 

allegations that the employer had posted a racially offensive cartoon, made racially 

offensive slurs, selectively enforced rules against Hispanics, provided unsafe vehicles to 

Hispanics, and kept illegal personnel files on Hispanic employees. The court concluded 

that the misconduct at issue was not so severe or pervasive so as to give rise to a racially 

hostile work environment. Id. at 1031, 1036. Here, Plaintiff has not alleged that a single 

comment or slur was directed at her or others based on their Mexican-American national 

origin. Rather, Plaintiff’s allegations are based on the legitimate restrictions that were 

imposed due to her continued violation of applicable laws and regulations. The 

restrictions that were imposed on Plaintiff were neither severe nor pervasive and 

certainly did not create an abusive work environment.

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Plaintiff’s national origin harassment claim also fails because MCCCD took 

prompt, effective remedial action after Plaintiff complained that the restriction imposed 

by MCCCD were allegedly discriminatory and/or retaliatory. Faragher v. City of Boca 

Raton, 524 U.S. 775, 807 (1998); Star v. West, 237 F.3d 1036 (9th Cir. 2000). Here, 

MCCCD’s remedial efforts included: (1) maintaining a policy against discrimination and

harassment; (2) promptly hiring an outside investigator who investigated Plaintiff’s 

complaints of alleged discrimination and retaliation; (3) conducting an investigation that 

involved interviews of 12 employees; and (4) reminding all interviewed individuals of 

MCCCD’s anti-harassment, anti-discrimination, and anti-retaliation policies. [DSOF ¶

82-86]. After a thorough investigation, the outside investigator concluded that there was 

no merit to Plaintiff’s claims. These prompt remedial actions taken by MCCCD satisfy 

the Farragher/Ellerth defenses and operate as a bar to Plaintiff’s recovery against 

MCCCD.

3. Plaintiff’s Retaliation Claim Fails As A Matter of Law.

To make out a prima facie case of retaliation, a plaintiff must show that “(1) she 

engaged in a protected activity, (2) she suffered an adverse employment action, and (3) 

there was a causal link between her activity and the employment decision.” Stegall, 350 

F.3d at 1065-66 (citation omitted). Here, Plaintiff cannot establish any of these elements 

of her claim.

a) Plaintiff’s Complaints About The Title V Advisory 

Committee Did Not Constitute The Type Of Protected 

Activity Covered By Title VII.

Title VII’s opposition clause only prohibits adverse employment action taken 

against an individual “because he has opposed any practice made an unlawful 

employment practice by [Title VII].” 42 U.S.C. § 2000e-3(a) (2000). Here, Plaintiff 

contends that she engaged in protected activity when she complained that: (1) PC “was 

not using Title V grant funds to address and/or serve the needs of Hispanic students”

[DSOF ¶ 77]; and (2) there were no Hispanics from the Math Department on PC’s Title 

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V Advisory Committee [DSOF ¶ 79]. As an initial matter, Plaintiff’s complaints about 

the use of Title V grant funds concerned matters entirely outside the scope of Title VII’s 

provisions. Title VII concerns discrimination in employment whereas Title V governs 

the award of monetary grants to educational institutions.10 [DSOF ¶ 74-75]. Simply put, 

Plaintiff’s complaint about the use of Title V funds was not the type of complaint 

protected by Title VII’s anti-retaliation provision. See Learned v. City of Bellevue, 860 

F.2d 928, 932 (9th Cir. 1988) (“[T]he opposed conduct must fairly fall within the 

protection of Title VII to sustain a claim of unlawful retaliation). Moreover, it is well 

established that Plaintiff’s opposition must be based on a “reasonable belief that the 

employer has engaged in an unlawful employment practice.” Moyo v. Gomez, 40 F.3d 

982, 984 (9th Cir. 1994).

Here, Plaintiff’s allegation regarding use of Title V funds and/or PC’s failure to 

appoint Hispanics from the Math Department to the Title V committee did not concern 

any employment practice under Title VII. Indeed, the Court need look no further than 

Plaintiff’s own sworn admission that she had no idea as to whether PC was using the 

Title V funds in an illegal manner. [DSOF ¶ 77] With respect to the composition of the 

Title V Advisory Committee, it is important to note that Plaintiff does not contend that 

there was anything discriminatory about the Title V selection process.

11

 Rather, 

 

10Plaintiff’s complaints about the use of Title V funds arise from her mistaken belief that 

the Title V funding should be used exclusively to “address and/or serve the needs of 

Hispanic students.” [DSOF ¶ 77]. However, it would have been a violation of Title V 

regulations to use grant funds in this manner. [DSOF ¶ 77] Rather, Title V grant funds 

are designed to benefit the educational institution as a whole. [DSOF ¶ 78] For 

example, Title V funds can be used for things such as building and maintaining college 

infrastructure, purchasing new equipment, or creating new academic programs. [DSOF 

¶ 78] Failure to comply with grant guidelines can result in revocation of grant monies. 

[DSOF ¶ 78].

11There was also nothing discriminatory about the Title V Advisory Committee 

membership selection process. It is undisputed that committee membership is comprised 

of department chairs from the four STEM subject areas and other individuals who are 

appointed on an as needed basis. [DSOF ¶ 79] And because Sueyoshi, not Plaintiff, was 

the Math Department Chair in 2009, he was placed on the committee. [DSOF ¶ 79]

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Plaintiff’s complaint appears to be based on her subjective belief that the composition of 

the Title V committee “[didn’t] represent the needs of the Hispanic student.” [DSOF ¶ 

77]. Clearly, a subjective belief of this type does not qualify as or concern an unlawful 

employment practice and, thus, does not constitute protected activity.

b) Plaintiff Cannot Establish That Her Complaints Of 

Discrimination Were The “But-For” Cause of Any Purported 

Adverse Employment Action.

Plaintiff complaints of discrimination were not the “but-for” cause of any 

subsequent purported adverse employment actions. As the U.S. Supreme Court recently 

clarified in University of Tex. Southwestern Medical Center v. Nassar, “Title VII 

retaliation claims must be proved according to traditional principals of but-for causation

... [t]his requires proof that the unlawful retaliation would not have occurred in the 

absence of the alleged wrongful action or actions or the employer.” 570 U.S. (2013)

(pinpoint cite not yet available). Here, Plaintiff cannot establish this threshold 

requirement. 

As an initial matter, Plaintiff cannot establish that the December 1, 2009 

reprimand had anything to do with her complaints of discrimination because, as set forth 

in Section IV(B)(3)(a), supra, Plaintiff did not engage in any protected activity until 

November 19, 2009 when she filed her internal EEO complaint. [DSOF ¶ 82]. The 

 

Perhaps the best evidence of the lack of any discriminatory animus by MCCCD is the 

fact that Plaintiff herself had served on the Title V Advisory Committee from 2002

through 2004 in her role as Math Department Chair. [DSOF ¶ 80] It is also undisputed 

that at least one other Hispanic faculty member was serving on the Advisory Committee 

at the time of Plaintiff’s complaints. [DSOF ¶ 81]. As if that were not enough, after 

Plaintiff expressed interest in the Advisory Committee to Title V Director Seth 

Goodman, Plaintiff was immediately placed on the committee (which resulted in both 

Plaintiff and Sueyoshi representing the math department). [DSOF ¶ 81] Simply stated, 

Plaintiff’s complaint was not that Hispanic or Mexican-American faculty members were 

not permitted to serve on the Title V Advisory Committee. Rather, Plaintiff’s complaint 

was that the 2009 Math Department committee representative was not Hispanic. 

Apparently, Plaintiff believed that Hispanic faculty members should be preferentially 

selected for the Advisory Committee to the detriment of members of other races or 

nationalities.

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issues addressed in the December 1, 2009 reprimand had already been investigated and 

disciplinary recommendations had already been made well before Plaintiff filed her 

November 19, 2009 internal EEO charge.12 [DSOF ¶ 38-53]. Accordingly, these 

alleged disciplinary actions could not have possibly have been caused by Plaintiff’s 

November 19, 2009 internal EEO complaint.

Plaintiff also cannot establish that any increased scrutiny with regards to work 

study students was retaliatory. Indeed, the relevant decision maker who recommended 

the removal of Plaintiff’s work study students, Dean Wilbert Nelson, was not aware of 

Plaintiff’s Title V complaints or Plaintiff’s November 19, 2009 EEO complaint at the 

time he made his recommendations. [DSOF ¶ 53]. Dowe v. Total Action Against 

Poverty, 145 F.3d 653, 657 (4th Cir. 1998) (“Since, by definition, an employer cannot 

take action because of a factor of which it is unaware, the employer’s knowledge that the 

plaintiff engaged in a protected activity is absolutely necessary to establish ... the prima 

facie case.”).

In actuality, the actions MCCCD took were the direct result of Plaintiff’s refusal 

to follow applicable federal laws and regulations, her failure to follow MCCCD policies 

and procedures, her complete lack of accountability for her actions, and her unreasonable 

exposure of MCCCD to legal liability from third parties. [DSOF ¶ 8-53].

c) MCCCD Had Legitimate Nonretaliatory Reasons For Its 

Actions.

Finally, even assuming, arguendo, that Plaintiff can somehow establish her prima 

facie case of retaliation, MCCCD had legitimate nonretaliatory reasons for its actions.

 

12For example, confidential documentation was discovered in Plaintiff’s garbage can on 

or around September, 24, 2009. [DSOF ¶ 63]. In early Fall 2009, MCCCD’s IT 

Department discovered that Plaintiff had improperly downloaded a file sharing program 

called LimeWire and improperly allowed an unauthorized user to access her laptop. 

[DSOF ¶ 64]. The decision to reprimand Plaintiff for these infractions was made well 

before Plaintiff filed her internal EEO charge. [DSOF ¶ 65]. Moreover, issues 

pertaining to Plaintiff’s improper supervision of her federal work study students had 

previously been brought to Plaintiff’s attention in an October 8, 2009 letter from Kakar. 

[DSOF ¶ 66].

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As discussed in Section IV(B)(1), supra, MCCCD’s desire to protect itself from 

litigation resulting from Plaintiff’s suspected violations of federal laws and regulations 

constituted a legitimate nondiscriminatory reason for its actions. [DSOF ¶ 83]. 

Accordingly, Plaintiff’s retaliation claim fails as a matter of law. 

C. Plaintiff’s § 1983 Claim Fails As A Matter of Law.

Plaintiff’s Complaint contains a claim for § 1983 race discrimination, harassment, 

and retaliation. “Traditionally the requirements for relief under [§] 1983 have been 

articulated as: (1) a violation of rights protected by the Constitution or created by federal 

statute, (2) proximately caused (3) by conduct of a ‘person’ (4) acting under color of 

state law.” Crumpton v. Gates, 947 F.2d 1418, 120 (9th Cir. 1991). When an action 

seeks damages from a municipal entity such as MCCCD13, as opposed to a person acting 

under color of state law, she must specifically “identify a [Maricopa] ‘policy’ or custom’

that caused the plaintiff’s injury.” Bd. Cty Comm’r Bryan County Oklahoma v. Brown, 

520 U.S. 397, 403 (1997); see, also, Monell v. Department of Social Services, 436 U.S. 

658, 691 (1978).

14

 Here, Plaintiff cannot establish a prima facie case of § 1983 race 

discrimination, harassment or retaliation because: (1) she does not contend that any 

widespread MCCCD polices or practices give rise to her § 1983 claims; (2) she cannot 

establish that MCCCD intentionally subjected her to discrimination on the basis of her 

race; and (3) MCCCD had legitimate, nondiscriminatory and nonretaliatory reasons for 

its actions.

 

13See, e.g., Thornquest v. King, 626 F.Supp. 486 (M.D. Fla. 1985) (holding that a 

community college is a municipality for purposes of § 1983 claims).

14It is well established that “a municipality may not be held liable under § 1983 solely 

because it employs a tortfeasor.” Bd. Cty Comm’r Bryan County Oklahoma v. Brown, 

520 U.S. 397, 403 (1997). Rather, a Plaintiff must go beyond the respondent superior 

theory of liability and demonstrate that the alleged constitutional deprivation was the 

product of a policy or custom of the local governmental unit, because municipal liability 

must rest on the actions of the municipality and not the actions of the employees of the 

municipality. Id. at 403.

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1. Plaintiff Does Not Even Allege That An MCCCD “Policy” Or 

“Custom” Gives Rise To Her Claims.

Plaintiff’s § 1983 claim against MCCCD fails as a matter of law because she has 

not identified any widespread policies or practices that give rise to her § 1983 claims. A 

municipal policy or, for purposes of § 1983, custom means acts or omissions that are so 

pervasive and settled as to have the force of law. Bryan County, 520 U.S. at 404. Here,

Plaintiff has not even alleged, must less established, that any widespread policies or 

practices lead to discrimination, harassment, and retaliation claims. To the contrary, at 

deposition Plaintiff conceded that there is no widespread practice of discrimination or 

harassment against Hispanics and/or Mexican-Americans at MCCCD. [DSOF ¶ 68]. As 

a result, MCCCD is entitled to judgment as a matter of law with regard to Plaintiff’s 

claims under 42 U.S.C. § 1983.

2. Plaintiff Cannot Establish That MCCCD Intentionally 

Subjected Her To Discrimination On The Basis Of Her Race.

In order to prevail on her § 1983 race discrimination claim, Plaintiff must prove 

that MCCCD acted with “deliberate indifference to the risk that a violation of a 

particular constitutional or statutory right will follow the decision.” Bryan, 520 at 411. 

In other words, in order to establish her § 1983 claim, Plaintiff must show that MCCCD 

discriminated against her on the basis of her race and that MCCCD intended to do so. 

Trautvetter v. Quick, 916 F.2d 1140, 1149 (7th Cir. 1990) (“intent to discriminate must 

be shown under equal protection while Title VII requires no such showing.”) Here, for 

the reasons set forth in Section IV(B), supra, Plaintiff cannot establish that MCCCD 

subjected her to discrimination, harassment or retaliation—let alone that MCCCD 

intentionally did so.15 Nevertheless, even assuming, arguendo, that Plaintiff can 

 

15Plaintiff considers the terms Hispanic and Mexican-American to be synonymous with 

one another. [DSOF ¶ 70] Because Plaintiff’s Title VII national origin claims and 

§ 1983 race claims are based upon identical allegations, the same analysis set forth in 

Section IV(B), supra, applies to Plaintiff’s § 1983 race discrimination, harassment, and 

retaliation claims. 

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somehow establish prima facie § 1983 claims, the claims fail as a matter of law because 

MCCCD had a legitimate, nondiscriminatory, and nonretaliatory reason for its actions. 

See St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 506, n. 1 (1993) (the same Title VII 

“McDonnell Douglas framework is fully applicable to racial-discrimination-inemployment claims under 42 U.S.C. §1983.”). As discussed in Section IV(B)(1), supra, 

MCCCD’s need to protect itself from litigation that might have ensued from Plaintiff’s 

noncompliance with copyright laws and FERPA regulation constituted a legitimate 

nondiscriminatory reason. [DSOF ¶ 8-53]. Accordingly, Plaintiff’s § 1983 claims fail 

as a matter of law.

D. The Same Protected Class Inference Rebuts Plaintiff’s Claims Of 

Discriminatory Animus.

Plaintiff appears to attribute the vast majority of the purportedly discriminatory 

and harassing conduct in this case to PC President, Anna Solley. [DSOF ¶ 71] Most 

notably, Plaintiff contends that the copying restrictions Solley imposed on her were 

somehow discriminatory on the basis of Plaintiff’s Mexican-American national origin

and/or Hispanic race. [DSOF ¶ 71]. Not only is this implausible given Plaintiff’s 

misuse of copyrighted works, it also makes no sense given the fact that the decision 

maker, Solley, is of the same national origin (Mexican American) and race (Hispanic) as 

the Plaintiff.

16

 [DSOF ¶ 72] Accordingly, the same protected class inference negates 

Plaintiff’s assertions of discrimination and harassment. See Oncale v. Sundowner 

Offshore Serv., 523 U.S. 75, 78 (1998) (recognizing the inference).

E. Punitive Damages Are Not Recoverable.

As a matter of law, punitive damages are not recoverable against a municipal 

entity under either § 1983 or Title VII. See City of Newport v. Fact Concerts, Inc., 453 

U.S. 247, 271 (1981) (municipalities are “immune from punitive damages under 42 

U.S.C. § 1983”); 42 U.S.C. § 1981a(b)(1) (“A complaining party may recover punitive 

 

16Solley is and has been a long time member of Hispanic organizations, was born in 

Nogales, Mexico, and speaks fluent Spanish. [DSOF ¶ 73].

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damages under this section against a respondent (other than a government, government 

agency or political subdivision)”); see, also, Berger v. Iron Workers Reinforced Rodmen, 

Local 201, 170 F.3d 170 F.3d 1111, p. 1139, fn. 17 (noting that the same punitive 

damages standards apply under Title VII, § 1981, and § 1983). In City of Newport, the 

Supreme Court explained that “punitive damages imposed on a municipality are in effect 

a windfall to a fully compensated plaintiff, and are likely accompanied by an increase in 

taxes or a reduction of public services for the citizens footing the bill.” 453 U.S. at 267. 

Here, MCCCD is a taxpayer supported entity that relies heavily on funding and 

appropriations from the Arizona legislature. [DSOF ¶ 6]. Accordingly, punitive 

damages are not recoverable against MCCCD. 

Even assuming, arguendo, that MCCCD is not immune from punitive damages,

punitive damages may only be awarded “if the complaining party demonstrates that the 

respondent engaged in a discriminatory practice with malice or reckless indifference to 

the federally protected rights of an aggrieved individual.” 42 U.S.C. § 1981a(b)(1).17 

To award punitive damages, the plaintiff’s conduct must constitute more than just 

intentional discrimination. Otherwise, every claim of disparate treatment, if proven, 

would result in an award of punitive damages. Instead of merely proving intentional 

discrimination, claimants must prove that the alleged discriminator affirmatively knew 

that he or she was acting in violation of federal law. See, e.g., Kolstad v. Am. Dental 

Ass’n, 527 U.S. 526, 535-36 (1999); Ngo v. Reno Hilton Resort Corp., 140 F.3d 1299, 

1304 (9th Cir. 1998) (holding that “[p]unitive damages may not be awarded ... where a 

defendant’s discriminatory conduct is merely negligent in respect to the existence of a 

federally protected right.”). “Where there is no evidence that gives rise to an inference 

 

17The same punitive damages standard applies to § 1983 claims. Ngo v. Reno Hilton 

Resort Corp., 140 F.3d 1299, 1301-04 (9th Cir. 1998) (holding that a punitive damages 

award under Title VII requires, as does § 1983, that the acts giving rise to liability are 

willful and egregious, or display reckless indifference to the plaintiff’s federal rights); 

see also Mahach-Watkins v. Depee, 593 F.3d 1054, 1060 (9th Cir. 2010) (a jury may 

award punitive damages on a § 1983 claim if it finds that the state actor’s conduct was 

“malicious, oppressive or in reckless disregard” of plaintiff’s rights).

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of actual malice or conduct sufficiently outrageous to be deemed equivalent to actual 

malice, the trial court need not, and indeed should not, submit the issue of punitive 

damages to the jury.” Kolstad, 527 U.S. at 539.

Here, Plaintiff’s allegations come nowhere close to supporting a finding of 

unlawful discrimination, harassment, or retaliation—let alone an award of punitive 

damages. [DSOF ¶ 8-53].

V. CONCLUSION

For the above and foregoing reasons, Defendant respectfully submits that 

Plaintiff’s Complaint should be dismissed in its entirety and that summary judgment 

should be entered in favor of MCCCD on all claims.

RESPECTFULLY SUBMITTED this 11th day of October 2013.

FISHER & PHILLIPS LLP

By s/ Shayna H. Balch

Pavneet Singh Uppal

Shayna H. Balch

201 E. Washington Street, Suite 1450

Phoenix, Arizona 85004-2330

Attorneys for Defendant

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CERTIFICATE OF SERVICE

I hereby certify that on the 11th day of October 2013 I electronically transmitted 

the attached document to the Clerk’s Office using the CM/ECF System for filing and a 

that a copy was served, via email and U.S. Mail, postage prepaid, on the following:

Cleopatria Martinez

7030 North 21st Street

Phoenix, Arizona 85020

4cleopatria@gmail.com

Pro Per

 s/ Romina Gallina

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