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Edmundo P. Robaina (No. 018125) 

Thomas T. Griffin (No. 022475) 

Ashley A. Marton (No. 029442) 

ROBAINA & KRESIN PLLC

5343 North 16th Street, Suite 200 

Phoenix, Arizona 85016 

Telephone: (602) 682-6450 

Facsimile: (602) 682-6455 

epr@robainalaw.com 

ttg@robainalaw.com 

aam@robainalaw.com 

Attorneys for Plaintiff Cleopatria Martinez 

UNITED STATES DISTRICT COURT 

DISTRICT OF ARIZONA 

Cleopatria Martinez, 

 Plaintiff, 

vs. 

Maricopa County Community College 

District, et al., 

 Defendants. 

No. CV 15-01759 NVW 

PLAINTIFF’S REPLY TO 

DEFENDANTS’ RESPONSE TO 

PLAINTIFF’S MOTION FOR 

SUMMARY JUDGMENT

Plaintiff Cleopatria Martinez (“Martinez”) hereby replies to Defendants’ 

Response to Plaintiff’s Motion for Summary Judgment (the “Response”). For the 

reasons set forth in Plaintiff’s Motion for Summary Judgment and below, Martinez 

respectfully requests that the Court grant her motion. 

MEMORANDUM OF POINTS AND AUTHORITIES 

I. DEFENDANTS VIOLATED MARTINEZ’S DUE PROCESS RIGHTS IN 

RELATION TO HER SUSPENSION

In their Response, Defendants argue that Martinez had “all the process she was 

due” with respect to her suspension because Martinez was provided all the process 

afforded her by MCCCD’s rules. Defendants’ assertion is based on the fact that 

Martinez had a prehearing meeting with Phoenix College President Solley and Vice 

President Kakar regarding Defendants’ intent to dismiss her, a hearing before the 

Hearing Committee with respect to the intent to dismiss her, and a meeting with Vice 

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Chancellor of Human Resources Bowers after Defendant Rufus Glasper (“Glasper”) 

decided to suspend her; and because Martinez made several (unsuccessful) attempts to 

seek Governing Board review of the suspension. Defendants are incorrect for several 

reasons. 

First, even if Defendants followed MCCCD procedures perfectly, that does not 

mean that they properly observed Martinez’s due process rights. As noted in Plaintiff’s 

Motion for Summary Judgment, due process is a matter of federal law and may not be 

diminished by the fact that a public employer may have specified its own procedures that 

it deems adequate for determining the preconditions to adverse official action. Cleveland 

Board of Education v. Loudermill, 470 U.S. 532, 540-41 (1985); Logan v. Zimmerman 

Brush Co., 455 U.S. 422, 432 (1982). 

Second, while as Defendants note, the neutral and detached Hearing Committee 

heard the dismissal case against Martinez, it did not make the decision with respect to 

suspension. Additionally, the meeting with President Solley and Vice President Kakar 

did not satisfy due process because that meeting, again related to the intent to dismiss 

Martinez was, in any case, only in the first half of the due process equation -- the 

informal, non-neutral pre-disciplinary “hearing” required under Loudermill as an initial 

check. See Loudermill, 470 U.S. at 545-46; Walker v. Berkeley, 951 F.2d 182, 183-84 

(9th Cir. 1991). 

Furthermore, the mere opportunity to discuss the suspension with ViceChancellor Bowers after receiving the notice of suspension was inadequate for due 

process purposes. Bowers could not be a neutral arbiter of his boss’s decision to suspend 

Martinez, and in any case, he had no authority to change the suspension [Defendants’ 

Responses and Objections to Plaintiff’s Statement of Material Facts in Support of 

Material Facts in Support of Plaintiff’s Motion for Summary Judgment (“Defendant’s 

Objections”) ¶ 22]. 

Nor did the several futile attempts Martinez made to seek Governing Board 

review of the suspension somehow render Defendants’ actions consistent with due 

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process. The Governing Board made no decisions whatsoever regarding the matter. 

[Defendants’ Objections ¶¶ 35-37]. Finally, Glasper, as explained below, was not an 

impartial decisionmaker in this case. 

Third, even if Defendant had provided appropriate due process with regard to the 

allegations that were both in the notice of intent to dismiss and the notice of suspension, 

as noted in Plaintiff’s Motion for Summary Judgment, Glasper added a new allegation in 

the August 9, 2013 Statement of Charges (See Motion pp. 9-10) for which Martinez also 

had the right to a meaningful opportunity to be heard before an impartial decisionmaker. 

This never occurred in any forum. 

In sum, Martinez was not given the opportunity to be heard by a neutral and 

detached decisionmaker with respect to the suspension. Defendants therefore violated 

her due process rights. 

A. Due Process Requires an Impartial Decision Maker, and Glasper was 

Not Impartial 

In their Response, Defendants notably do not actually claim that Glasper was an 

impartial decisionmaker with regard to the suspension. Instead, Defendants cite 

Withrow v. Larkin, 421 U.S. 35 (1975) for the proposition that Glasper was not 

precluded from deciding that Martinez would be suspended because of his prior 

involvement in the dismissal proceedings. (See Response p. 12-14). 

In Withrow, the Supreme Court noted that a fair trial in a fair tribunal is a basic 

requirement of due process, and that this requirement applies to administrative agencies 

which adjudicate as well as courts. Id. at 46. The Court held, however, that the mere 

fact that nonadversary investigative powers and adjudicative powers are combined in a 

state administrative agency, without more, does not violate due process. Id. at 48-55.1 

 

1

 Notably, even where the issue is the inter-agency combination of investigative and 

adjudicative functions, the Court held that a court is not precluded from determining 

from the special facts and circumstances of a case before it that the risk of unfairness is 

unreasonably high. Id. at 58. Moreover, as noted in Walker, the Withrow Court 

understood that in that case, different persons had performed the investigative and 

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Withrow has been distinguished, where, for example, the same individual who 

prosecutes, or investigates and prosecutes, the case before an administrative agency then 

becomes a decisionmaker in the same proceeding. See e.g., Osuagwu v. Gila Reg’l 

Med. Ctr., 938 F.Supp.2d 1142, 1163-65 (D.N.M. 2012) (physician’s due process rights 

violated where acting Chief of Staff played roles as accuser, prosecutor, investigator and 

judge in summary suspension and termination of physician’s hospital privileges); 

Davenport Pastures, LP v. Morris County Bd., 291 Kan. 132, 146-48 (2010) (probable 

risk of actual bias is too high where county counselor had roles as legal adviser to Board 

of Commissioners, advocate, and arguably adjudicator of a damages award related to 

the Board’s decision to vacate roads); Davis v. Wood, 427 A.2d 332, 337 (R.I. 1981) 

(although a combination of investigatory and judicial function is not always prohibited, 

when the same individual who investigates and prosecutes the case before an 

administrative agency then becomes a factfinder in the same proceeding, the 

adjudicatory state of the proceeding has been unconstitutionally tainted); Gashgai v. 

Board of Registration In Medicine, 390 A.2d 1080, 1082 n.1 (Me. 1978) (“[T]he 

combination of investigator, prosecutor and sitting member of the adjudicatory panel, 

even if ostensibly a nonparticipating member, creates an intolerably high risk of 

unfairness”); Bruteyn v. State Dental Council & Examining Board, 32 Pa. Commw. 

541, 380 A.2d 497, 501 (1977) (prosecutorial and administrative functions 

unconstitutionally intertwined where same attorney general who investigated and 

prosecuted a case before the Dental Board also drafted a final adjudication and order). 

See also Pickering v. Board of Educ., 391 U.S. 563, 578 n. 2 (1968) (critiquing fact that 

 

decisionmaking functions. Walker, 951 F.2d at 185 (citing Withrow, 421 U.S. at 54 & n. 

20). See also City of Huber Heights v. Liakos, 145 Ohio App. 3d 35, 46 (2001) (drawing 

a distinction between the permitted practice of reposing both investigative and 

administrative authority in an institution and the prohibited practice of permitting a 

single individual to perform both tasks; and noting that the combination of investigative 

and adjudicative functions vested by a city ordinance in the city manager is a form of 

unbridled discretion); and Elliot v. SEC, 36 F.3d 86, 87 (11th Cir. 1994) (Under the 

Administrative Procedures Act, an “agency may combine investigative, adversarial, and 

adjudicative functions, as long as no employees serve in dual roles.”). 

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the administrative trier of fact was the same body that was both the victim of appellant’s 

statements and the prosecutor that brought the charges aimed at securing his dismissal); 

and In re Murchison, 349 U.S. 133, 137 (1955) (a judge who is part of the accusatory 

process “cannot be, in the very nature of things, wholly disinterested in the conviction 

or acquittal of those accused.”). 

In this case, in contrast to Withrow, the issue is not one of mere investigation and 

adjudication within the same agency. Here, prior to deciding to suspend Martinez for 

fourteen months (which resulted in sixteen months without pay and benefits), Glasper 

had taken an adversarial position with respect to Martinez, recommending Martinez’s 

termination to the Governing Board. Through MCCCD’s attorneys, Glasper then 

prosecuted the case against Martinez before the Hearing Committee, which 

recommended against dismissal. Glasper then suspended Martinez himself rather than 

allowing the Governing Board to decide the issue, as he could have. [See Defendant’s 

Objections ¶¶ 35-37]. In acting as accuser and prosecutor, and then as judge, Glasper 

violated the requirement of neutrality and Martinez’s due process rights. See e.g., 

Levine v. City of Alameda, 525 F.3d. 903, 906 (9th Cir. 2008) (upholding district court’s 

order that a post-termination hearing be held before a neutral third-party, and not 

persons working for the City with which the appellant had engaged in extensive 

litigation; and citing Walker, 951 F.2d at 184, in noting that “[the Ninth Circuit] has 

held that for post-termination hearings an impartial decisionmaker is required.”). 

Defendants attempt to distinguish the Walker case from the present case by 

claiming that Walker stands only for the proposition that an attorney who represents a 

government employer in litigation against a public employee cannot also decide an 

administrative case against the public employee. [See Response at p. 12]. Defendants 

read Walker too narrowly. In determining that the attorney in question could not play a 

“dual role,” Walker cited American General Ins. Co. v. Federal Trade Com., 589 F.2d 

462 (9th Cir. 1979), a similar case in which the Ninth Circuit explained the legal history 

of the maxim that the same person cannot be a party and a judge of in the same cause. 

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Id. at 463-464. American General did not limit its analysis in the way Defendants 

argue, and indeed, it would make no sense that the attorney/agent for a public employer 

cannot play dual roles (partisan and adjudicatory) because it violates due process, but 

another individual agent (in this case Glasper) can do so. 

Defendants also attempt to justify Glasper’s actions by claiming that Glasper 

came to his decision to suspend Martinez because of statements allegedly made to him 

by the Hearing Committee members. [See Response p. 2, lines 17-24 and DSOF ¶¶ 25-

26]. Martinez moves the Court to strike this evidence as impermissible hearsay. See 

Fed. R. Evid. 802; Quanta Indem. Co. v. Amberwood Development Inc, 2014 WL 

1246144 (D. Ariz., March 26, 2014) (citing Burch v. Regents of the Univ. of Cal., 433 F. 

Supp. 2d 1110, 1121 (E.D.Cal.2006)) (“Because ‘[v]erdicts cannot rest on inadmissible 

evidence’ and a grant of summary judgment is a determination on the merits of the case, 

it follows that the moving party's affidavits must be free from hearsay.’”). It bears 

noting that Glasper mentioned nothing about any conversation with Hearing Committee 

members in the letter of suspension, instead stating only that the suspension was based 

upon the written statement of charges, which does not refer to any conversation between 

Glasper and Hearing Committee members either. [See PSOF ¶¶ 37 and 43].

B. Defendants’ Argument that Plaintiff May Not Claim on Summary 

Judgment that Glasper was not an Impartial Decision Maker is 

Baseless 

In their Response, Defendants also assert that Martinez is “foreclosed” from 

arguing that Glasper was not an impartial decisionmaker because, they claim, Martinez 

“never disclosed this argument,” presumably in her complaint. However, a complaint 

“need not pin a plaintiff’s claim for relief to a precise legal theory” and need not provide 

an exposition of the plaintiff’s legal argument. Skinner v. Switzer, 562 U.S. 521, 530 

(2011). In this case, nonetheless, Martinez alleged in her Verified Amended Complaint 

the following facts that bear directly on the argument Defendants now claim she never 

disclosed: 

/// 

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16. Notwithstanding the Hearing Committee’s 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 fourteen and a half months 

– from March 1, 2014 to May 15, 2015. 

***** 

30. Chancellor Glasper’s rejection of the Hearing Committee’s factual 

findings and unilateral imposition of a fourteen-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. 

***** 

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. 

***** 

44. Accordingly, Chancellor Glasper’s suspension failed to provide Dr. 

Martinez with any due process at all... 

***** 

70. Dr. Martinez was entitled to either a pre-suspension or postsuspension hearing. (citations omitted.) 

***** 

72. Chancellor Glasper’s decision to suspend Dr. Martinez without pay 

for fourteen and a half months violated Dr. Martinez’s constitutional due 

process rights. 

***** 

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74. The pertinent constitutional standards are long-standing, were 

clearly established at the time of the suspension, and include: 

***** 

 A right to due process free of bias. (citations omitted.) 

[Verified Amended Complaint] 

 These allegations are sufficient to put Defendants on notice of Martinez’s 

assertion that Defendants violated her due process rights when Glasper, who was not a 

neutral arbiter, decided to suspend her. 

C. Plaintiff’s Section 1983 Arguments are not Duplicative of or Separate 

from Her Due Process Claims 

In their Response, Defendants appear to misunderstand the Section 1983 

arguments in Plaintiff’s Motion for Summary Judgment. Martinez does not seek to 

establish separate causes of action against each Defendant under 42 U.S.C. § 1983 apart 

from her Fourteenth Amendment due process claims against each Defendant. Martinez 

merely seeks to establish for summary judgment purposes each Defendant’s distinct 

liability for the due process violations in this case, pursuant to Section 1983, and 

Defendants have made no argument to the contrary. 

II. CONCLUSION 

For all of the foregoing reasons, as well as the reasons set forth in Plaintiff’s 

Motion for Summary Judgment, Plaintiff Cleopatria Martinez respectfully requests that 

the Court grant Plaintiff’s Motion for Summary Judgment. 

RESPECTFULLY SUBMITTED this 23rd day of May 2017. 

 ROBAINA & KRESIN PLLC

 By /s/ Edmundo P. Robaina 

 Edmundo P. Robaina 

 Thomas T. Griffin 

 Ashley A. Marton 

 

 Attorneys for Plaintiff Cleopatria Martinez 

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CERTIFICATE OF SERVICE 

I hereby certify that on the 23rd day of May 2017, I caused the foregoing 

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

System for filing and transmittal of a Notice of Electronic Filing to the following 

CM/ECF Registrants: 

Pavneet Singh Uppal 

Shayna H. Balch 

FISHER & PHILLIPS LLP 

3200 North Central Avenue, Suite 805 

Phoenix, Arizona 85012-2425 

puppal@laborlawyers.com 

sbalch@laborlawyers.com 

 Attorneys for Defendants 

By /s/ Gaynell Carpenter 

Case 2:15-cv-01759-NVW Document 88 Filed 05/23/17 Page 9 of 9