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BEFORE THB GQVERTIII~IG BOARD OF THE

MARICOpA COUtVTY Ct7MM[JIVITY COLLEGE DISTR:TCT

MARICOPA COUN'CY COMMUNITY )

COLLEGE DISTRICT', ) HEARING C(3MMI'fTEE

v. ) FINDINGS OF FACT', CONCLTJSIQNS

J OF LAW, AND RECOMMENDATION

DR. CLEOPATRiA MA~.TZIVE~ ~ _ }

pursuant to the Qotober 16, 2013 5aheduling Order, hiving reviewed all of the parties'

pleadings. and exhibits and candnctung a hearing one Nquemher 18, 2013, the Hearing Committee

(by majority rote} hereby submits tha following Findings of ~'tict, Conclusions of ~,aw and ,

k2ecominendation,

FCNDINGS.UI~' ~'AGT i

1. After ha~'~n~ taught ~t~th~ra~tics full-time far ten years at Denver Community

College, Dr: Cteflpetrie~ Mertii ~z tnc~~ed t~ Arizar~a and sfarted teac~iing mathematics full-time at ~ -

~cottsciake .. Coil mun~i~ Col~e~e can Jart~ary I,198S. ~ F ~ . .

~. ~ .

2. Dc. Mariinea voluntarily transferred to Phoenix College {"PC") in I94S and has

been_ teaching mathematics theie full=time ever since, j

E

a.. Dr. N~artinez elected to volixntarily transfer. to I'C because there were very'f~w' ''

minority students attending~Scotksd~le Community College, and she wanted td use: her bilingual

education skills in the mathematics classroom to better educate the large number of mittority

studants at#encling PC:

4. Dr. Martinez wes elected by .her coliea~ues to serve as the Chairperson of fha. -

Mathematics Deportment oP PC from 2002 to 20Q~.

i

5. In early 2010, PC discovered that Dr. Cleopatcia Martinez may have exposed

MGCCD to potential liability for copyright infringement. ,

6. Dr. Martinex testified that, during her twenty-eight yeazs of teaching mathematics

in the MCCCD system, she and her colleagues in th8 Mathex»atcs Departments of both

Scottsdale Community Coilege snd PC routinely borrowed maWemaiics problems from other

rnathemaucians to use in their student handouts for educatio~a) purposas on a not far prafi#basis.

7. br. Martinez testified, without rebuttal, that this borrowing of rnathematzcs

problems is a Iangstanding~ widespread custom throughout the T7istrict and academia at large.

8. Instead of requiring her mathematics students to purchase textbooks, Dr. TVlart[nez ,

prepared her awn Bourse materit►ls which she called har "Lechue Notes" and distributed them to

408681 -1-

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her students. MCCCD Exhibit List # q-S (Martinez.~epo., pp. 77:17-78:15, 106:16-1O8:T6,.

121;Z5,140;13,132:1b-137;25).

9. Dr. Martinez read the Copyright Aot of 197b and believed that. it authorized her tp

l use small portions of other schalats` work under the "Fair Use° doctrine because she was using it

only for classroom teaching purposes on a not for profit basis and her use of the rrcaterial did not

~ undermine the potential market for the other scholar's work.

i

i 0. Pcr the "Fair Use" docfrine of the Copyright Act, the "use of a copyrighted work .

..for purposes such as criticism, comment, news reporting, teaching (including multiple copies

for classroom use), scholazship, or research, is not an infringement of copyright." l7 U.S.C. §

107.

11. Ar. Martinez copied problems from capyri~;ht protected textbooks and inserted

them into hcr'coursa materials. MCCCD Exl~,ibit List # 4-5 (Martinez Depo., pp. 106:1b-

' 10$:6).

i

'• 12. Dr. Martir~ex, im her. Basic Arithmetic (MATQ82) course, copied problems directEy

frown a copyrighted textbook entitled"Basic Mathematics" and. inserted them into.her "MAT Q82

Basic Arithmetic. Sprinp~ 2010" course materiels which she disEributed to students, MCCCI]

Exhibit List # 20 (Full-Sized Excerpted Comparison), She did not seek or obtain .permission

j from the Copyiight:holder.. _ .. .

~,: 13. Dr. Martinez also copied problems, direc#Iy fxom -the Sullivan &Sullivan

"1'recalculus" textbook and inserted them into her "MATI.82 Trigonometry Spring 2010" course

materials. MCCCI7 ~achibit List # 22 (Full-Sized Excerpted Comparison). She did net seek or

F ~ obtain permission from the copyright holder.

:j

14. Dr. 1Vlartinez did not require her studenfs to peirchase textbooks in her Sprang

MAT082 Course, MCCGD Exhibit List # 1$ (email from Dr. Martinez stating "I indicated in my

syllabus that, instead of a published textboolt, I wus using lecture nptes in my MAT082 class: '}

15. Dr. Ntartinez did rapt require her students to purchase textbooks in her Spring

MAT182 Course. See Dr, Martin~z's hearing testimony (conceding that students were not

required to purahuse a textbook in her Spring ZOl O MATI 82 course,

16, On or around Janu~ty 12, ZO10, h+ICCCD's Vice President of Aoademic Serveces,

12onnie EEliot, sent Dr. Martinez an email.-notifying her that there were alleged copyright related

problems with the matez~iais she `had printed foe iha Fal) 2009 and Spring 2Q10 semesters.

MCCCD Exhibit List # 23 (January 12, 2010 .email). The materials in question were packets of

course rr~arerials fir Dr. Martinet's MATl.82 ar►d MATl87 courses and contained .mathematics

problems and graphs that were taken$om copyrighted textbooks. ~MCCCD exhibit List # l l

(Roxtnie Elliot 17eclaration, ¶¶8,9); MCCGD Exhibit List # 15 (MAT182 course packet);

MCCGD 6xhibjt List # 7 (Seen Garrison October 28, 2U10 Memorandum).

l7. Dr. Martinez used three of the four packets of "leahue notes" in the Spring of

2010 in two pre-calculus classes. See District Exhibit 6, parts 1-3.

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~8. The MCCCD administration, following~Vice President Elliot's email, repeatedly

explained its copyright concerns to Dx. IvCarFinex and asked Dr. Martinez to remove any

copyright protected maWetnatics problems from her materials. See Kakar Flearing Testimony. `

19. On 7anuary 26 2(110, Vica President Eltiot sent Dr. Martinez an email outlining

MCCCD'3 COIICCT[13 regarding Dr. Martittez's patendal copynight in#'ringement. YvICCCD

Exhibit I;ist # 24 (January 2fi, 2014 email).

20. ~n January 28, 2016 MCCCU in~house-counsel Margaret McConnell discussed

copyright compliance with Dr. Martinez telephonically. NICCCD ~Cxhibit List # 25 (January 28,

' 2Q1.0 email).

2I. Dr, Martinez did not bene~tt fYnm the multiple MCCCD copyright information

sessions Hated above.

22. ~ PC's own e~cpert witness, Sean Garrison, testified tha# under the "Fair Use"

doctrine, someone could lawfully copy from a copyrighted textbook without either using or

purchasing the textbook,

23.~ . On. Febru~ry-5, ZOIU;~Vice:.Prescde~t°a~ Academic Affairs Calandra Kakar,,

Interim Vice President of Administrative Services Paul DeKase, and Dr. Martinez met to discuss

Dr. 1Vlarhnea's altegect,misuse o~copyrighted,materials... MCCCI~ exhibit List #,26 (February ...;.

i2; 2010 emart): ~~ . `

24. Dr, ,Martinez his not used any o~the four. sets Qf "Ieciure, notes" since the Sp,ri~g

of 2010 wh~r~ PC fixst raised its concerns regardin~,the notes.

~~,. ,+tin. tlprit 15, 2f?t0~ 1'G Librati~ r~►ttu Roselle eonducted a.personalized.;ot~e-on- ... . ' - ,

one cap~rr~~bt tz~inin~ session vuith Dr: il~S~rtinex. MCCCI~ Exhzbit List # 28 (Copyright

PowerPt~int Presantati~snj. fee aa~so, Kzr.~~r Hearing Testirnnn~.

2b: W'her~ 1,7r. Martinez met with the librarian, the librarian told Dr. Maztinez that Dr.

Martinez kue'uv' as much about copyrigtat law as she did. See Martinez Hearing Tea#imony.

27. Following the revocaiion of Dr. Martinez's copyi►ag privileges, Dr. Martinez was

required to submit her copy requests to Ma#hematics Department Chairperson Mr, Sueyoshi so

that Mr. Sucyoshi could revi~w~her materials for possible copyright viotafions prior to copying

and distribution to students. MCCCD Exhibit T.ist # 8 (April 2, 2010 Directive).

2$. Dr. Mariiz~ez sought and obtained a form of written permission from the publisher

of the textbook, Sullivan & Sullivan's "Precaloulus;' to copy materials &am their book ef3er PC

accused her of violating copyright Iaw.

29. On or around April 19, 2010, Dr. Martfnez attempted to bypass the copying

restrictions by having an adjunct mathemarics Professor, .Foh~nr►y SanieIlan, make 24 seta of

? copies of her "Lecture Notes" for distribution to her mathematics sfudents without obtaining

prior approval from the Mothematics Department Chairperson. MCCCD E~chibit ~,ist # 12

(5ueyoshi Decl., ~J9); MCCCD Exhibit List # 4-5 (Martinez Depo., pp. 223:1 I-224:2O.

4088&1 -3~ .

MCCCD/Martinez 03995

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.~

3Q. ~ Becausc ]7~. Mairtinrx did' not feel she was able ~to .obtain zeliable guidance

xegardiz~g copyright carnplisnce from the District, she sougltE advice from a private intellectual

~ propexky attorney regarding the issue, Mr. Frederic He3lamy.

31, Mr. Bellamy reviewed the first twn sets of fir, Martinet's "lecture' notes" and

concluded that they did nat violate copyright law because they fell under the "Fair Use" doctrine,

32. Mx. Bellamy based his conclusion tfiak Dr. Martinez did aot violate copyright law

on the apinio~n that the portion of material that Dr. Nlsttinez copied froth the Sul~ivau &Sullivan

Precalcuius textbook wtts very smell, thnt she used the copied materials exclusively for

educational purposes without any profit motive, that the content of tkie copied material consisted

of mathematics ~rob~em~ that are arguably not sc~bjcet to copyright in the first place, and that the

.~ small portlan of ttxe tc~book that Dr. Marti~cx copied ciid not adversely impact the potential

market fox the t.~extbank.

33. At the heaz~ng~ another lawyerpraetteing in the area of rnteilectual property law, "'

Sean Garrison, te.~ri~ed ort behalf of PC. In contrast ta-Mr, Bellamy, Mr. C~arrisnn testified, at the

hearing that tfie first three sefs.of, Dr. Martinet's lectrue notes violated copyright law.

3~. ; ~ In contrast to his testimony at the hooting cif Npv~mbex~ ~8, 2013 in his. written :~. ,

report Mr, Ganr~son concluded only thttt the first three sets of Dr. Martine~'s lecture notes

subjected the District `.`tq ~ serious risk of a~capyright infringement claim" See DisniGt Exhibit ,;

a: ~ - _. 6, p: QOfl2. ,,

35. MCCCD incited Dr. Hlartinez to ~ Cappri~6t workshop that ryas held an-March i,

24 i 0 at PC. ~7r. Martinez chose not io aktend the workshop. MCCCD Eat3ribit List # 10: (Solle~

i . ~ , . 

Dec(., ~l l.).. , . . ' ~ .. v _

36. PC Fresident Anna Soll~y, an ~?ecember 9, ZOlO, concluded that Dr. Martinet's

alleged misconduct pQssd an unaccept~ie legal risk of a copyright 3n&in$ement claim and.

imposed'xestniet~ons an Dr. Martinex's photocopying privileges. MCCG17 E~ibit List # ~0

(Soltey 13ec1., ¶12).

37. ' ° 11+IC~CD sau~ht tt legal opitrion horn an outside copyright expert, attorney Sean

C3arrispn. MC~CD Exhibit [,ist ~ 10 (Saltay Decl., ¶ 14); MCCCU Exhibst List # 7 (Sean

Garrison Qctnber 28,2024 Memo),

38, Accaxding to Mac. ~arrFsan, tree thud set of "lecture notes" appeared to have 13

mathematics pr~bl~ms copied from ttiyo other mathematics textbooks,

39. Mr. Garrison testified ~ that he was certain that Dr. Martinez' has eomirnittcd

copyright infringement. See Garrison H~arittg Testimony. In reaching this cpnclusion, Mr.

Garrison reviewed thousands of pages of materials including hearty 30d pages of Dr_ Martinet's

lecture notes and three separate copyri~hEed mathematics textbooks. MCCCD Exhibit List # 6

(Sean Garrison April Z9, 2013 Report); see also Garrison Hearing Testimony.

40. ~n reliance upon Mr. Garrison's recommendafians, PC i'reaident Anna Solley

issued a Decerxtber 9, 2Q1U directive that imposed further restrictions on Dr, Ma~'ktnez's copying

a~eSsi ~ -4-

MCCCD/Martinez 03996

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~~_ t~

`privileges, MCC~D Fxhibii T.ist # 9 (Decetnbcr 9, 20I0 bixcctivc); MCCCD Exhibit T..ist # 10

(~0l1~~ D~cl,,'Q1S~. ~ -

4

4i. '['~a ~~c~mbee 9, 2414 Directive prohibited Dr: Martinez from utilizing any '.

course matezials of her own creation. MCCCD Exhibit List # 4 (December 9, 2010 Dzxeative).

Instead, Dr. Mz~tinex was req~,ired to oxxly usa cofarse materials tl~ak are "appxnved by the

mathematics deg~ztment" or that arc "avaitab2e~in the bookstore for sate to students and that arc

authored by persons oth$r zhan [Dr. Martinez]:' MCCGD Exhibit List # 9 {~7ecember 4, 2D10

42. The December. 9, 2010 Dire~cdve further xequired nr. Martinez to submit her

photocopy requests to the Mathematics Deparl~ment chair for his approval. MCCCD Exhibit

~,ist # 9 (December 9, 2014 Directive).

43. I)es~ita MCCCI.~'s frequent discussions with Dr. Martinez re~ardin~ the

importance af,aflrzaplying with copyxight laws and the December 9, 2010 Direotive, Dr. Martinez 4

continued to attempt to sgnore the dizectiv~. See ~Cakar Hearing Testiirnony.

I _ - -

~ 44. At the beginning of the fall 2012 sems~ter {on or about August 21-23, ~0] 2), Dr.

Martinez infarm~d I~er studants thaC they were not.~qu~red"to purcF~ase a course textbook. and .~ , E

that she would provide. them with her own course materials in lieu of a textbook. MC~GD

_~_ ~ ~ "Extdbit~~.~st~#4~~~(iV~a~tinez~i~epu.y-PA..23.2:19-233:21: ~ _ . ~,;~~ ~ ~.. r~

45. to fall. of 20112, Dr. Martinez sought to hive her Iectura notes pkzptacopieci .off ?

campus at a nearby ~teples scare. This practice is inconsistent with the I~ec~mber 9; ~OIQ r ~ ~`

Directive. MCCCD exhibit ~.ist # 4 (~7~e~ember 9,=201{3 I.7ixeciive); MCCCD Exhibit'LisE # 4-5

{Mar[inezDelm~~PP.23~.1~-233:21). ., ~

. 46. . ' nr, Martinez did not-subrnit'hcx Fait 2012 materials to Niathematica Department - ''

Chairperson Mr. ~Sueyoshi for appra~val. MCCCp Lxhibit List # 4-5 (Martinez Dep~., pp: ~ . ~ j+

232:19-233:21).

47. Dr: Martinez made copies of her course materials at an ofF campus Staples store, ('

and distributed them to students for $`y 1 per copy. 1~'iCCCD Exhihit List {€ 4-5 (Martinez Depo., (,

• pp. 232: 9-233:21). r.

~, 98. The $I Y couzse mate~aal fey was paid directly to Dr. Martinez by students. ~,

MCCCD Exhibit List # 4-5 (Martinez Dep4., pg. 232:19-233:21). .

49. 7?+C acpused Dr. Mxrtitxea of violating the District's "cash handling" rules by

distributing these course materials to her stadents if the students reimbursed her for her out-of- ,

Pocket copying casts. ~ ,

i

S0. TIC subsequently claimed that Dr. Markinez violated the District's "casE~ handling"

policies by seskingxeirnbursement for the copies.

51. 1V.C~CC.C?'s policies prohibit fn$tructars tram having "any ~inancia! interest in or

receiv(in~] compensation from the sale of any unpublished instructional maieriala requised ter

~f086S1 -SMCCCD/NI~rtinez 03997

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,1 ~ ~ ~ ~ ~~

suggested for a cuss that the instnlctor teaches." MCCGD Exhibit List # 41 (Residential Faculty

Policies; 3.2.4).).

52. Dr. Martinez failed to follow t}te protaeol set forth 3n the December 9, 2410

Directive in copying her Fall 2012 course materials. MCCCD Exhibit List # 9 {December 9, 4

20] D Directive}; MCCCD Exhibit ~.ist # 45 (Martinez Depo., pp. 232:19-23321).

53. Dr. Martlnex distributed course materials directly to students in her Fall 2012

MA7"151 class. MCCCD Exhibit List # 45 {Martinez Depo. pp. 232:19-233:21).

S4: TE~e MCCGD Administration learned of Dr, Martinez's unauthorized distribution `

of course materiaEs to students after one of Dr. Martinea's MAs15l students complained to

Mathematics Department Chairperson Mr. Sueyoshi. "rhe student complained that Dr. Martinez

refused to pzovide her with a receipt for the purct~s~d course materials. See ICakar Hearing

Testimony.

- ~ S5. ~: Upon Teaming that Dr. Martinez bad distrRbuted course materials. to studen#s

~11e(;edly Iii violation caf MCC~t7's cash Uua7dlin~ ~islicy, Presideut`Solley iastructecl lVZartinez to

itrina~diatG]y~issue refunds t~ her students ~tia p~rsr~t~r~ check. NiCCCD exhibit ~,ist~# 3~ (Octaber~~ '

t8;2g12~~b~znseli~gNotic~),see~alsa~~ak~rl-~~arin$~Testimony.' ~~_ ~ .. _ .. ~_

`,~ , ~ , ~ ~ , .., 5b: ; bn. or~ around October, l ~;~ 2Q12, : Ptesident So11~Yr anti ,Dr, Kaltar:.met with•. Dr..: , ° ,.

Martinet to explain the seriousness of Dr: Mardziez's~alleged eash~handling violation.; MCCCD

ExEii~iii List #'3 (Uctofie"r 18, 2012~~otinseli~g Notice); sea else ~Cakar Hearing:Testimr~ny. Sn'

addition; Presidegt Soltey and Dr. Kakar prepared'a written aounselin~ memo dated Octobez 18

2010 for Dr,~ IVlartinez regarding her alleged violation of cash handling Hiles. Dr; Martinez was

provided r~viEh a copy of the Octabar~ 18, 201U cous~s~ling notice and Rresident Solley proceeded

tc~ explain ~to Dr. Martinez ?hs seriousness of file alleged cacti handling violatinas and the

requirement that Dr. Martine2`issus reimbursements to-.her students. IvICCGD Exhibit List•# 3~ ~ ~

(October 18, 2012 Counseling Notice); see' also Kakar Flearing Testimony: ~

r

57. Several months later, on or around January 9, 2013. Dr. Kakar learned that most

(if z of all) students had not yet received refunds from the Dr. Martine. MCCCD ~L'xhib t List #

39 (various emails regarding student refunds). As a 'result, Dr. Kakar instzucted Dr. IYFartine~ to

provide eopies of refund checks by January t 8, 2013. MCCCD Exhibit fist # 39 (various emails

regarding student refunds). .

58: Dr. Martinez .failed to produce a single refund check by the January 1 B, 2013 `

deadline. MCCCD. Exhibit List.# 39 (various ernails regarding student refunds}.

` . ' S9. ~ Dr. 1Vlariinez did not think that she had violated any District rule in reference to

the copies. Therefore, she declines! to follow the December 9, 2010 order because she believed

.she was not required #a do so under any District rule.

60. At the Ngvember I8, 2013 hearing, Dr. Martinez did. not pzovide any explanation

fob hex refusal to compty with the October 18, ZQ12 and January 9, 2013 directives Eo issue

refunds to her students. See Martinez Hearing'Testimony.

` aoesel _6_

iVICCCll/Martinea 03998

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x ~ ~ ~~

x

6I. A# tFae hearing Dr, Martinez testified that she had made a "mistake" and, in

retraspcct, should have complied with President So11ey's instructions. Sce Martinez Nearing

Tesrimony.

62. Qn or around August 9, 2013, MCCCD ChAncellor Rufus Clasper sent Dr, .

~ Martinei a letter informing her .that MCCCD was proceeding with termination proceedings.

~~ Included with this letter was a statement o~ charges that summarized the partict~ar vioiarions Dr.

Ivlarti;iez had been changed with (hereinafter Teferred' to as "Statement of Charges:'] MCCCD

Exhibit List # 1 {Statement of Charges}.:

CONCLUSIONS :.

63. -. PC failed to carry its burden of proof relating to violation of MCCCD's cash

handling noes found in MC~CGI? Ad►n'inistrative Re$uiadons 1.17, violarion vF Residential

~'oticy,Manual 3;2.4 (retating to financEal interests in unpublished materials), violation of U.S.

Copyeight Law and fair use guidelines, and vio3ation of MCCCD Administrative Regulations

` 3.2tF and 3:2,5 related to copyright regu[ations.> ~ ..

64.. Nrstwithstandin~ their education; their experience, and their good faith, Mt. ` ,

.~ell~my ancL CV1r..Ciarr son disagreed as ro -whether or not Dr. Martinez violated copyri~hf slaw.

'= Therefore, it is iuconctusir~e as to whether Dr. MartiAez intentionally andloc inadvertently

i` violated'federai'ctiP}~'right laxv;;~`- . .: ,.. ... ~ ~> .: ..

~{ 6S Xt ~a inconclusive as to~wf~ath~r or~dot Dr. Ivtartinez via~ated the "cash. handling'' ~ ~~

policies of N1CCCll. ~ ,

6d... l~r, Martinez willfully anal intcnuonally failed to fallow inskructians that were, ,,

comruunicate~ .to ler vrhen she failed tb issue refunds to students as directed by President Solley.

'' , b7. •Dr, Martinez conceded that she never complied with President Solley's clear ".

~, ~~ directive to issue refund§ to her students. Although Dr. Mfutinez now regrefs her decision not to

`; ~ ~~ ~ 7 comply with. President Solley's directive, she has never claimed that she did not understand the

~~,q~~ instructions yr that the instructions were beyond tiie scope of management's adthority. Viewed

~j in Iigbt of these facts, Martinez's claim that she s`made a rntstake" is an admission o~ willful

insubordination.

68. ~y failing to comply with President Solley's directive to issue refunds to her ~

'students, Dr: Martinez vioaated MCCCD Administrative Regulation 6.7,1 which prohibits the

"[w}iil£ul and intentional violation of any.,.MCCCD administrative regulation that affects. the ~`

employee's ability to perform his or her job."

69. By failing to compEy with President Soilcy's directive to issue refunds to students,

Dr. Martinez violated MCCCn Administrative Regulation 6,7.3 which prohibits the "~wJillfui

and intentional failure to perform jab duties that have first been communicated to an employee

and are within the erripluyee's scope of employment " y

JJl ~ .

44G681 -7-

MCCCD/Martinez 03999

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~,,~ ~ ~

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'7~,; ~1~~ t~~r~6~ :recnrrsmend that ih~ .G_overn~g ward deny R~esid'en~ SoTtey's

termzrrat~on_reques~~nd~~,llo~,'C~r 1~I~r[~nez tq cnnt~nu~:lier IuiCGCD employmezif,

~~ - ~ ~ ~. ~?~~ N,tG~~D A.dmir~sti~fi~+e ~R~gutai~a~ ~.7. n~icatiii~ :tHa~ ~ii~laiiori of. ariy~

~mplo~rrie~;~ Stau~dards: "coz~f~"~ttt~s aids: #°ar, dtsalpI nary, a~ti~ri, ~up to Ceili~l~asis'adi3~dj:asic~ ~

'~nct~t~.~n~ terizi nat on," :ire. Ei'C~~'t }~ a~c4mm~nt~ 'at t~1~ :~v i1~; Baud reta~r►_J~r..: ~1!Ia~tih~

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~~Xs or~e~~d so;;~tl~es~,,~t'izoii~, ~Iizs ~tt~.day a~becera ~.U~~„

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D~:S~~z`~ Rees and ~~r>~C&~I~i~.~asr0~

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MCCCD/Martinez 04000

Case 2:15-cv-01759-NVW Document 73-5 Filed 03/03/17 Page 9 of 178
Case 2:15-cv-01759-NVW Document 73-5 Filed 03/03/17 Page 10 of 178
Martinez vs MCCCD

Videotaped Deposition of Cleopatria Martinez, Ph.D., Vol. I - 8/16/2016

UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

Cleopatria Martinez, )

Plaintiff, )

v. ) No. CV 15-01759-PHX-NVW

Maricopa County Community )

College District; et al., )

Defendants. )

VIDEOTAPED DEPOSITION OF

CLEOPA'T'RIA MARTINEZ, Ph.D.

VOLUME I (Pages 1 through 158)

Phoenix, Arizona

August 16, 2016

10:07 a.m.

Glennie Reporting Services, LLC

7330 North 16th Street

Suite A100

Phoenix, Arizona 85020-5275

Prepared by:

602.266.6535 Janet Hauck, RPR

www.glennie-reporting.com Arizona CR No. 50522

GLENNIE REPORTING SERVICES, LLC

602.266.6535 - www.glennie-reporting.com

Case 2:15-cv-01759-NVW Document 73-5 Filed 03/03/17 Page 11 of 178
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A. Yes.

MS. BALCH: This is marked as Exhibit 4 --

Exhibit 4 to the deposition.

(Exhibit 4 was marked.)

Q. BY MS. B~LGH: This is titled Notice of

Pre-Disciplinary Conference. It is dated March 20th, 2013.

Do you see i_t at the top of the page?

A. Yes.

Q. And this is a notice to you that the District

was considering disciplinary action against you based on

the bulleted alleged violations at the bottom of this page

and continuing on to the next page; is that correct?

A. Yes.

Q. And as of the date of this March 20th, 2013

disciplinary notice you had not issued refunds to students,

had you?

A. Correct.

Q. On this Notice of Pre-Disciplinary Conference

the third paragraph of this reads, "The purpose of this

conference is to ensure that the decision to be made

concerning the complaints against you as described in

detail below is based upon complete and accurate

information, to inform you of the charges against you and

the evidence in support of those charges, and to provide

you with an opportunity to respond." Do you see that?

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A. Yes.

Q. And I want to draw your attention to two

specific alleged violations here. The first one is the

first bullet, Violation of Administrative Regulation

6.7.1 -- I'm sorry, 6.7.1, "Willful and Intentional

Violation of any state or federal law, applicable

ordinance, MCCCD governing board policy, or MCCCD

administrative regulation that affects the employee's

ability to perform his or her job."

And the last bullet under the alleged

violations, it's immediately above where it says, "Brief

Timeline," states, "Violation of Administrative Regulation

6.7.3, willful and intentional failure to perform job

duties that have first been communicated to an employee and

are within the employee's scope of employment." Do you see

that?

A. Yes.

Q. So as of March 20th, 2013, you were put on

notice that the District was seeking to discipline you over

alleged violations of Administrative Regulations 6.7.1 and

6.7.3; is that correct?

A. State that again.

Q. This Notice of Pre-Disciplinary Conference dated

March 20th, 2013, Exhibit 4 to your deposition, this notice

is notifying you that the District is seeking to take

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disciplinary action against you based on your alleged

violations of Administrative Regulation 6.7.1 and 6.7.3,

correct?

A. I'm not clear about that. There are other

bullets. You named two bullets.

Q. I'm asking you whether or not you had knowledge

that the District intended to pursue disciplinary action

against you based on your alleged violations of

Administrative Regulations 6.7.1 and 6.7.3 based on this

notice?

A. Yes.

Q. All right. I want to draw your attention back

to Exhibit 1, which is the complaint, and the first tab

we've affixed to that complaint, it's the first Statement

of Charges dated August 9th, 2013.

MS. MARION: I apologize, Counselor. Is

Exhibit 1 the complaint or is Exhibit 2 the complaint?

MS. BALCH: I apologize. Exhibit 2 is the

complaint.

MS. MARION: Okay. Just to clarify.

MS. BALCH: Thank you for that clarification.

MS. MARION: Mm-hmm.

Q. BY MS. BALCH: So Exhibit 2 to your deposition,

the first tab, and it is dated August 9th, 2013, Statement

of Charges. Do you know when you received the Statement of

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A. I understand that there exists -- that they're

saying there exists a cause for dismiss -- prima facie

cause for dismissal.

Q. So is your -- are you finished?

A. Yes.

Q. So is your understanding of the Statement of

Charges that the District is looking to terminate you on

the basis of --

A. Yes.

Q. -- these charges --

A. Yes.

Q. -- correct?

And one of the allegations under 6.7.3 is

your failure to reimburse students for the materials you

wrongfully charged them for and failure to meet the

deadline to provide copies of any reimbursement checks to

students, correct?

A. That's what I read there.

Q. And after receiving this August 9th, 2013

Statement of Charges you submitted an appeal, correct?

A. (No oral response.)

Q. Let me phrase it differently° A request for

hearing.

A. I don't remember when I submitted it.

Q. I'm just asking if you did submit a request for

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hearing. And if you want to just turn to the next page

you'll see a document that should refresh your memory.

A. Yes.

Q. So the next page here is -- the date on it is

August 16th, 2013, and this is a letter from Stephen

Montoya to James Bowers, who is the interim vice chancellor

for human resources at MCCCD. At the top of the page it

says document 14-3. And this is your attorney's request,

acting on your behalf, for a hearing, correct?

A. Yes.

Q. And the district granted your request for a

hearing, correct?

A. Yes.

Q. And a hearing was, in fact, held on

November 18th, 2013, correct?

A. Yes.

Q. And the hearing was conducted before a

three-member panel, correct?

A. Yes.

Q. And the panel was comprised of District faculty

who are your peers, correct?

A. Yes.

Q, And, in fact, you selected one of those Hearing

Committee panel members, correct?

A. Yes.

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Q. And the District selected another, correct?

A. Yes.

Q. And you and the District compromised on the

third, correct?

A. No.

Q. Who selected the third?

A. I'm not clear.

Q. During this hearing you were represented by

counsel, correct?

A. Yes.

Q. Was that Stephen Montoya?

A. Yeso

Q. And you received a full-day hearing, correct?

A. Xes.

Q. And you submitted a hearing brief through your

counsel; is that correct?

A. I don't know what that is.

MS. BALCH: Mark this as Exhibit 5.

(Exhibit 5 was marked.)

Q. BY MS. BALCH: Dr. Martinez, have you seen this

document before that's been marked as Exhibit 5 to your

deposition?

A. I don't remember.

Q. That's fine. Is titled Hearing Committee

Preliminary Scheduling Order. Do you see that at the top

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of the page?

A. Yes.

Q. And I want to draw your attention to a couple of

paragraphs here. Paragraph number 7 on page 2 it states

that a hearing is set for November 18th. See that?

A. Yes.

Q. And a Hearing Committee was, in fact, held on

November 18th regarding your possible dismissal, correct?

A. Yes.

Q. And this Preliminary Scheduling Order also sets

forth deadlines for you to submit a position brief; is that

correct? Paragraph 3.

A. Yes.

Q. So you were provided the opportunity to submit a

position brief, including exhibits and a list of witnesses,

to testify at the November 18th hearing; is that correct?

A. Yes.

Q. And you did, in fact, submit a position brief to

the Hearing Committee; is that correct?

A. I'm assuming so. I don't know.

MS. BALCH: Mark this as Exhibit 6.

(Exhibit 6 was marked.)

Q, BY MS. BALCH: You have what's been marked as

Exhibit 6 to your deposition. It is titled Cleopatria

Martinez's Position Statement. And in parens underneath it

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it states, "Hearing scheduled for November 18th, 2013, at

9:00 a.m.," end parens. Do you see that?

A. Yes.

Q. This is a copy of the position statement that

your attorney submitted on your behalf for the

November 18th, 2013 Hearing Committee?

A. Ask your question again.

Q. This is a copy of the position statement that

your attorney, Stephen Montoya, submitted on your behalf to

the Hearing Committee?

A. It appears to be.

Q. So you did, in fact, submit a position statement

to the Hearing Committee with regards to the November 18th,

2013 hearing, correct?

A. My counsel, yes.

MS. BALCH: Mark this as Exhibit 7.

(Exhibit 7 was marked.)

Q. BY MS. BALCH: Dr. Martinez, you have been

handed what's been marked as Exhibit 7 to your deposition.

This is titled Cleopatria Martinez's supplemental position

statement (hearing scheduled for November 18, 2013, at

9:00 a.m.) Do you see that at the top of the page?

A. Yes.

Q. And this is, in fact, a supplemental position

statement that your attorney, Stephen Montoya, submitted on

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your behalf for the November 18th, 2013 hearing, correct?

A. I assume so.

MS. BALCH: Marking this Exhibit 8.

(Exhibit 8 was marked.)

Q. BY MS. BALCH: And this is titled Citation of

Supplemental Authority, correct?

A. Yes.

Q. And this is a document that your attorney,

Stephen Montoya, submitted to the Hearing Committee on your

behalf, correct?

A. Z don't know all the documents you gave.

Q. I'm just asking whether or not you know if he

submitted that on your behalf.

A. 2 don't know.

Q. You don't know. But you do know that he

submitted at least two briefs to the Hearing Committee on

your behalf, correct?

A. I don't know. I'm assuming they were. I don't

know. I don't remember.

Q. Okay. So your testimony here today is that you

were assuming that your attorney, Stephen Montoya,

submitted position statements or briefs to the Hearing

Committee, but you don't have any knowledge one way or the

other; is that correct?

A. Yes.

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correct?

A. Yes.

Q. Turn to the next page, page 11, paragraph 22.

Read this out loud. "The Acting/Interim Vice Chancellor of

Human Resources did not consult with Dr. Martinez until a

week after Chancellor Clasper suspended her pay." What

facts do you have in support of paragraph 22 of your

complaint?

A. That's the only time I saw the chancellor, and

that's when I was notified.

Q. When you say it is the only time that you saw

the chancellor, that was the first or second week of

March 2014, correct?

A. The vice chancellor.

Q. I'm sorry. The vice chancellor.

A. Mm-hmm.

Q. It's the only time that you saw the vice

chancellor of human resources was the first or second week

of March 2014; is that correct?

A. Probably the second week, yes.

Q. So if I understand your allegation correctly,

you are claiming that you did not meet with the vice

chancellor of human resources until after you were already

suspended; is that correct?

A. Yes.

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Q. And your suspension was without pay?

A. Yes.

Q. And are you claiming that it was somehow

improper for the vice chancellor of human resources to meet

with you after your suspension was in effect?

MS. MARION: Objection.

But you can answer.

THE WITNESS: I just think you should be

notified that you are going to be suspended before it

happens, and he notified me -- I got the letter of

notification after I had already been suspended for several

days, maybe a week or two. So that is improper, I thought.

I don't know.

Q. BY MS. BALCH: Do you have any knowledge as to

whether or not the District refused to allow you to meet

with the vice chancellor of human resources prior to

March 1st, 2014?

A. I don't know.

Q. Did you have anything to do with the scheduling

of the meeting with the vice chancellor of human resources?

A. What do you mean?

Q. Well, you've had a meeting with the vice

chancellor of human resources, correct?

A. Mm-hmm.

Q. And it was -- it occurred on a certain date,

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correct?

A. Mm-hmm, yes.

Q. Were there multiple people that were present at

that meeting?

A. Yes.

Q. Who was present at the meeting with the vice

chancellor of_ human resources --

A. I don't remember.

Q, Let me ask that again because we're -- I don't

want to talk over each other on the record. So let me just

make sure that I have that clean.

Who was present during your meeting with the

vice chancellor of human resources the first or second week

of March 2014?

A. I don't remember everybody.

Q. Well, obviously, you were present, right?

A. Yes.

Q. And the vice chancellor of human resources was

present?

A. Mm-hmm, yes.

Q. Do you know if your attorney was present?

A. Yes.

Q. So that's three people that were present. Do

you know if anyone else was present?

A. I don't remember.

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writing before you were suspended, what did that mean?

MS. MARION: Objection. It is what it says.

But if you can answer, go ahead.

THE WITNESS: Well, I can't say it any more

clearly.

Q. BY MS. BALCH: If you were given the opportunity

to respond in writing before you were suspended, what would

that writing have looked like? What would it have been?

A. What would it have been? I would have responded

to the charges.

Q. For example, I know that your attorney on -- I

think it was March 12th of 2014, following your meeting

with the vice chancellor of human resources, he submitted a

brief to the board with exhibits. Would your written

statement have looked something like that?

A. 2 don't know what it would have looked like.

(Exhibit 9 was marked.)

Q. BY MS. BALCH: Introducing Exhibit 9 to your

deposition. Do you recognize the document that is Exhibit

9 to your deposition --

A. Yes.

Q. -- Dr. Martinez?

It's dated March 12th, 2014, correct?

A. Yes.

Q. And this is a letter from your attorney at the

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time, Stephen Montoya, to the District's governing board,

correct?

A. Yes.

Q. And the letter is just over eight pages long,

correct, plus exhibits?

A. Nine pages plus exhibits.

Q. And your attorney, Stephen Montoya, submitted

this to the governing board on your behalf, correct?

A. Yes.

Q. Do you know why he submitted this March 12th,

2014 letter to the governing board?

A. I don't remember.

Q. But it would have been with your authorization,

correct?

A. Yes.

Q. And you would have reviewed this March 12th,

2014 letter in its entirety, correct?

A. Yes.

Q. And you would have agreed with the arguments and

statements that Mr. Montoya made in this March 12th, 2014

letter, correct?

A. I don't know. I think so. I don't know.

Q. So you indicated that if you had been provided

an opportunity to respond to your Notice of Suspension in

writing prior to effective date of the suspension -- strike

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Let me know if my understanding of your

testimony is correct. I believe you testified that you

believe you should have been able to submit a response in

writing to the District regarding your suspension prior to

the effective date of your suspension; is that correct?

A. Say that again.

Q. My understanding of your testimony is that you

believe you should have been allowed to submit a response

in writing to the District to your suspension before the

effective date of your suspension; is that correct?

A. Well, something. I don't know exactly what, but

something before I got suspended rather than after or not

at all.

Q. If this March 12th, 2014 letter from Stephen

Montoya had been sent prior to the effective date of your

suspension, would it have served that purpose?

MS. MARION: Objection; speculation.

But you can answer.

THE WITNESS: I don't know.

Q. BY MS. BALCH; Do you recall what your attorney,

Stephen Montoya, stated in this March 12th, 2014 letter to

the board?

A. No.

Q. I want you to look at the bottom of page 8 of

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the March 12th, 2014 letter. The last full paragraph

states -- the second paragraph there, "As the board is

aware, a 14-month suspension is the economic equivalent of

a dismissal." Do you see that?

A. No. Oh, there. Okay. Read it again.

Q. "As the board is aware, a 14-month suspension is

the economic equivalent of a dismissal." Do you see where

that's noted?

A. Yes.

Q. So is it true that, as of March 12th, 2014, your

attorney, Stephen Montoya, argued to the governing board

that a 14-month suspension is the economic equivalent of a

dismissal?

MS. MARION: Objection, but go ahead and

answer.

THE WITNESS: I don't know what it means to

argue before the governing board. I don't know the meaning

of that. I don't know.

Q. ~Y MS. BALCH: Is it true that your attorney

submitted a letter to the board dated March 12th, 2014,

where you raised the issue that a 14-month suspension is

the economic equivalent of a dismissal?

A. Yes, he wrote this letter.

Q. And he informed the board in this letter that a

14-month suspension is the economic -- economic equivalent

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of a dismissal, correct?

A. Yes.

Q. And attached to this letter he included various

exhibits, correct?

A. Yes.

Q. Including the Hearing Committee's findings of

fact, conclusions of law, and recommendation, correct?

A. Yes.

Q. So at least as of March 12th, 2014, the

governing board had a copy of the Hearing Committee's

findings of fact, conclusions of law, and recommendation,

correct?

A. I don't know.

Q. Do you have any reason to believe that

Mr. Montoya did not send this letter to the governing board

on March 12th, 2014?

A. No.

Q. So you don't know one way or the other whether

or not he submitted this letter to the governing board?

A. Well, I don't know, but I believe he did. I

just don't know if the governing board got it. I don't

know what happened.

(Exhibit 10 was marked.)

Q. BY MS. BALCH: Introducing Exhibit 10 to your

deposition. This is a transcript of what was stated during

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the District's governing board meeting on March 25th, 2014,

hence that you're aware this is a transcript that was

provided along with requests for admission that were served

upon you and your attorney, and you, through your

attorneys, admitted that this is, in fact, a truthful

summary of the public board meeting that occurred -- or at

least excerpt of the board meeting that occurred on this

date. So I wanted to give you that background before I ask

you questions.

That being said, is it true that on

March 25th, 2014, you appeared before the governing board

regarding your suspension?

A. What do you mean 2 appeared?

Q. Did you go before the governing board on

March 25th, 2014?

A. What does that mean, go before? What do you

mean?

Q. Did you attend the March 25th, 2014 governing

board meeting?

A. I was there for a while.

Q. What does that mean?

A. Means 2 was present for a while, not very long.

Q. How long is a while?

A. I don't know.

Q. Can you give me an estimate?

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A. No.

Q. Was it 30 minutes? Was it an hour?

A. Could be, like, an hour.

Q. And did you speak in front of the board?

A. What do you mean?

Q. Dr. Martinez, I'm using some pretty basic

terminology here: Appear before, speak in front of. What

are you having issue with?

A. Are you speaking about officially or just

showing up or what?

Q. Why did you attend the March 25th, 2014

governing board meeting?

A. To participate in the citizens interim.

Q. And what did you want presented in this citizens

interim?

A. The letter that I presented.

Q. And the letter is dated March 25th, 2014?

A. Yes.

Q. The same date as the appearance?

A. Yes.

Q. And in your March 25th, 2014 letter to the

governing board did you summarize the termination

proceedings and Dr. Glasper's suspension of you?

A. Well, I had three minutes as a citizens interim

participant.

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Q. I'm asking in the letter.

A. Right, and so I attempted to say something about

myself in those three minutes.

Q. Let me clarify this here. So on March 25th,

2014, you attended the governing board meeting for the

purpose of participating in the citizens interim, correct?

A. Yes.

Q. On that same date you submitted a letter to the

governing board, correct?

A. Yes.

MS. MARION: Objection. Did we establish

that, that she submitted a letter?

MS. BALCH: She volunteered that information.

MS. MARION: Okay.

Q. BY MS. BALCH: Was the letter submitted before

the governing board hearing, during the governing board

hearing, or after the governing board hearing?

A. Well, it's not a letter. It was my three

minutes content, and it was submitted during the citizens

interim, yeah.

MS. BALCH: Give me a quick break, a quick

photocopy break, and I will be right back, because I think

this will help.

2:11 p.m.

THE VIDEOGRAPHER: We're off the record at

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(Recess from 2:11 p.m. to 2:19 p.m.)

THE VIDEOGRAPHER: Back on the record at

2:19 p.m.

Q. BY MS. BALCH: All right. So before the break

you mentioned that you had submitted a letter to the

governing board on March 25th, 2014, correct?

A. It wasn't a letter.

Q. You submitted a document to the governing board

on March 25th, 2014, correct?

A. Yeah. It was the content of my three-minute

presentation.

Q. Can you describe what that letter looked like --

or that document looked like?

A. It was -- it's a page and a fourth.

Q. It's a page and a fourth?

A. Single spaced, yes.

MS. BALCH: Okay. I'm going to introduce an

exhibit to your deposition, but I'm going to flag it for

both of you so we'll speed up the process here a little bit.

(Exhibit 11 was marked.)

Q. BY MS. BALCH: This is Exhibit 11. Exhibit 11

is a print-off of the District's governing board minutes

for March 25th, 2014. They're available on line. I just

printed them off. If you go to the little flag that I put

on there, do you recognize this March 25th, 2014 document?

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A. Yes.

Q. Is this the document that you submitted to the

governing board on March 25th, 2014?

A. Yes.

Q. Do you remember what you argued to the board in

this March 25th, 2014 document?

A. To hear me regarding my suspension.

Q. I want to draw your attention to the second page

of that document. On the one, two, three, four, the fourth

paragraph up from the bottom it starts with, "Like most

working people..." Do you see that paragraph?

A. Yes.

Q. The last sentence reads, "Under the

circumstances, the Chancellor's 14-month suspension of me

is the functional equivalent of a termination from the

District." Do you see that?

A. Yes.

Q. And this is an argument that you made to the

board in this document on March 25th, 2014, correct?

A. Yes.

Q. And at the bottom of the document you conclude

by asking the board to intervene in your case to rescind

the chancellor's suspension and, at the very minimum, allow

you to present proof of what you stated there; is that

correct?

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A. Yes.

Q. And you made these same arguments verbally to

the board on March 25th, 2014, during the citizens interim,

correct?

A. Yes. What did you say? I'm not really clear.

What did you ask me?

Q. I'm asking if you raised the same or similar

arguments to the board verbally that you raised in the

March 25th, 2014 document?

A. During the citizens interim you're referring,

right?

Q. Yes.

A. The three minutes, yes.

Q. Is it true that your attorney, Stephen Montoya,

also appeared on March 25th, 2014, during the citizens

interim portion of the governing board meeting?

A. Zs there a legal meaning to "appear"? Or is

that what you're asking me?

Q. I'm asking the terms generally. I can use a

different word if you prefer.

A. What are you referring to?

Q. To your knowledge, did your attorney, Stephen

Montoya, attend the March 25th, 2014 governing board

meeting?

A. He didn't attend the whole meeting. He was

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there for a portion.

Q, What portion was he there for?

A. I don't know. He was just there for a while.

Q. How long is a while?

A. .About an hour.

Q. Was he present for the citizens interim?

A. For part of it.

Q. Was he present when you presented to the board

during the citizens interim?

A. Okay. Now, when I spoke -- there's really not a

presentation -- yes, he was.

Q. Did you see Mr. Montoya speak to the governing

board during the citizens interim?

A. Yes.

Q. And the statements that he made to the governing

board are set forth in that transcript of proceedings dated

March 25th, 2014, correct?

A. Yes.

Q. Was Mr. Montoya still representing you at the

time he spoke to the governing board during the citizens

interim?

A. I'm not sure I understand that question.

Q. At the time you spoke -- I'll use your word --

to the governing board during the citizens interim, were

you represented by counsel? In other words, did you have

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an attorney?

A. Tn my life or at that meeting?

Q. Did you have an attorney retained?

A. In my life or at that meeting?

Q. In your life.

A. Yes, in my life I did.

Q. And that attorney was Stephen Montoya, correct?

A. Yes, uh-huh.

Q. And Mr. Montoya is the same attorney that

represented you in the November 18th, 2013 Hearing

Committee, correct?

A. Yes.

Q. Do you know whether or not your March 25th, 2014

document to the board was submitted into evidence?

A. Into evidence? What do you mean?

Q. Was it -- strike thato

You provided that March 25th, 2014 document

to the governing board, right?

MS. MARION: Objection; asked and answered.

THE WITNESS: To the secretary for the

governing board.

Q. BY MS. BALCH: That was actually my next

question. How did you submit it to the governing board?

So you submitted it to the governing board through the

secretary, correct?

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A. That's the process.

Q. How did you submit it? Via e-mail, via fax?

How did you submit it to the secretary?

A. I handed it to her.

Q. Did you hand it to the secretary at the

March 25, 2014 board meeting?

A. Yes.

Q. I next want to turn to the May 27, 2014

governing board meeting. This is one where Dr. Townsel

spoke to the governing board as part of the citizens

interim. I haven't handed you the exhibit yet. Do you

know whether you were present at the governing board

meeting on May 27th, 2014, when Mr. Townsel spoke to the

governing board --

A. I don't remember.

Q. -- regarding you?

(Exhibit 12 was marked.)

Q. BY MS. BALCH: Handing you what's been marked

Exhibit 12 to your deposition. Again, this is a excerpted

portion of a transcript from the May 27, 2014 District

governing board meeting. And in this meeting a Dr. Townsel

spoke to the governing board about you during the citizens

interim. Do you have any facts or information about

Dr. Townsel's speaking to the governing board on this date?

A. Do I have any what?

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interim?

A. No.

Q. Prior to today, did you know that he spoke to

the governing board regarding you during the citizens

interim on May 27th, 2014?

A. I don't know the date. So I don't know.

Q. Prior to today, did you know that he had spoken

about you to the board during a citizens interim?

A. Yes.

Q. Turn, please, back to Exhibit 2 to your

deposition. It's the Verified Amended Complaint, and it's

kind of near the end of the document. I'm going to have

you find the page that says document 14-8 at the top maybe

about ten pages from the back. It's a letter dated

August 13th, 2014. Are you there?

A. Yes.

Q. Do you recognize this document?

A. Yes.

Q. What is this?

A. It's from me to the governing board, and its

subject is grievance.

Q. And what is the content of this letter to the

governing board?

A. "This e-mail will serve as my formal grievance

for misapplication, misinterpretation, or violation of a

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specific provision or provisions of the residential faculty

policies that adversely affects me."

Q. In this August 13th, 2014 letter to the board,

are you essentially grieving to the governing board that

your suspension was somehow improper?

A. Let's see. What was the question again?

Q. I'l1 ask a new one.

Isn't it true that on August 13th, 2014, in

your letter to the governing board, you argued that the

chancellor could not terminate you, that he suspended you

without pay for such a long time that it's tantamount to

termination? And I'm looking at page 2 under argument.

A. Where are you referring to in here, argument?

Q. Starts, "When..." under argument. It's probably

one, two, three, four, five, six, seven lines down°

A. And what did you ask me?

Q. Isn't it true that on August 13th, 2014, which

is the date of this letter, you argued to the governing

board in your argument section that, "When the chancellor

could not terminate me, he suspended me without pay for

such a long time that it is tantamount to terminations"

A. I did write that.

Q. Why did you submit this August 13th, 2014

letter, or as you phrased it, grievance, to the governing

board?

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A. Because there had been a misapplication,

misinterpretation, or violation of a specific provision or

provisions of the residential faculty policy that adversely

affected me. So I was grieving that.

Q. What did you want the governing board to do?

A. To make that right.

Q. And what do you mean by "make that right"?

A. Reverse the termination.

Q. So were you asking the governing board in this

August 13th, 2014 letter to reverse the termination?

A. No. I'm asking to hear my grievance.

Q. Flip to the two pages immediately before this

August 13th letter. It's document 14-7 attached to your

verified complaint.

A. Mm-hmm, yes.

Q. This is another letter to the governing board

dated October 28th, 2014, correct?

A. Yes.

Q. Do you recognize this document?

A. Yes.

Q. Did you prepare this document?

A. Yes.

Q. Is everything in this document truthful and

correct?

A. Yes.

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Q. And in this document I'm going read the last

sentence of_ the third paragraph here. On October 28th,

2014, you argued to the governing board, "The chancellor

then suspended me in March 2013 without pay for over 14

months for my alleged insubordination." Correct?

A. Mm-hmm.

Q. So this argument was raised again to the board

on October 28th, 2014?

A. What argument?

Q. That you were suspended without pay for over 14

months.

A. Yes. I don't know if the board ever saw any of

this.

Q. Isn't it true that on October 28th, 2014, you

also attended the board meeting and participated in the

citizens interim?

A. I don't know for sure.

(Exhibit 13 was marked.)

Q. BY MS. BALCH: This is Exhibit 13 to your

deposition. This is -- another transcript again was

attached to the Request for Admission that we served on you

through your counsel. And you have admitted that this is a

correct typed version of the board meeting that took place

on October 28th, 2014, and is actually (indiscernible) on

the District's website. This was on October 28th, 2014.

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And the second line at the top there says, "I'll call on

the first one is Cleopatria Martinez." Do you see that?

A. What did you say about my name?

Q. That at the top of the page there the governing

board is calling on you as part of the citizens interim?

A. Yes.

Q. So is it safe to assume that you attended the

board meeting for purposes of the citizens interim on

October 28th, 2014?

A. Yes.

Q. And are the statements that you made to the

governing board during this board meeting, were they

truthful?

A. I think soe

Q. You have no reason to lie to the board, right?

A. Correct.

Q. And during this board meeting you requested --

and I'm reading at the top of the second page, the first

part of that first full paragraph, that you requested the

board to make you whole by reinstating you to your former

position, correct?

A. Yes.

Q. And during the citizens interim were you

grieving your suspension?

A. I was presenting a three-minute statement.

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Q. Was the three-minute statement about your

suspension?

A. Yes.

Q. On this date did you also provide -- strike

that.

We, just a minute ago, were talking about

your October 28th, looks like, a letter to the board. Is

that a document that you would have brought with you to the

board meeting and handed to the secretary for the board?

A. I don't know. I don't remember. I don't know.

(Exhibit 14 was marked.)

Q. BY MS. BALCH: This is Exhibit 14 to your

deposition. This is a printout of the District's governing

board minutes from its October 28th, 2014 board meeting.

And it's attached to these minutes and go to where the

tabbed portion is. Do you recognize that document dated

October 28th, 2014?

A. Yes.

Q. Is this the same document that is contained at

Exhibit 2 to your deposition, which is the amended

complaint, as document 14-7?

A. Yes.

Q. In reviewing through these meeting minutes and

this attachment, does this refresh your memory as to

whether or not you may have provided this October 28th,

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2014 document to the governing board at the governing board

meeting?

A. It appears I did.

Q. So you would have provided this October 28th,

2014 document at the October 28th governing board meeting?

A. Yes.

Q. Would you have provided this document in the

same manner as you did in the prior board meeting where you

provided it to the board secretary?

A. Yes.

Q. On October 28th during the citizens interim were

there any other individuals who spoke to the board

regarding you?

A. Well, according to this document it looks like

Mr. Vega -- Dr. Vega did.

Q. Anyone else?

A. And Dr. Townsel.

Q. Who is -- strike that.

Do you know Santos Vega?

A. Yes.

Q. How do you know him?

A. He's in the education community.

Q. Does he work for the District?

A. I don't think so. 2 don't know.

Q. Do you know where he works?

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A. No.

Q. Do you know how he came to attend the

October 28th, 2014 governing board meeting?

A. He and I talked.

Q. When did you talk?

A. I don't know.

Q. But it would have been before the October 28th,

2014 governing board meeting, right?

A. Yes.

Q. Did you ask him to attend on your behalf?

A. I don't recall.

Q. What was said in your discussions with Santos

Vega?

A. Oh, I don't know. I don't remember.

Q. You don't remember one way or the other?

A. I don't remember the exact content. No, I

don't.

Q. Can you provide a summary?

A. Probably about -- I'm -- I don't remember the

summary, but it's probably about my suspension.

Q. Draw your attention to Exhibit 2 again. This is

the verified complaint, document 14-6. Let me know when

you're there.

A. I'm here.

Q. Do you recognize this document?

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A. Yes.

Q. Is this a document that you drafted?

A. Yes.

Q. Does it appear to be a true and correct copy of

the document that you drafted?

A. Yes.

Q. And it's dated January 27, 2015, correct?

A. Yes.

Q. And is this a letter that you submitted to the

governing board?

A. Yes.

Q. And the subject of this letter is your

suspension, correct?

A. It says, "Notice of Claim Appeal of Grievances."

Q. But is this letter regarding your suspension?

A. It contains information about my suspension and

my termination. That's several pieces in here.

Q. I'm going to draw your attention to the last

full paragraph on the first page of this January 27, 2015

letter. It starts, "The reason why..."

Says, "The reason why the chancellor decided

to suspend me is obvious. By renaming my termination a

suspension the chancellor has effectively denied me the

right to meet either in executive session or a public

meeting with the governing board afforded by the

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residential faculty policies" -- there's a citation

there -- "to faculty member dismissal. I would have

selected a public meeting with the board." Do you see

thdt?

A. Yes.

Q. So on January 27th, 2015, you argued to the

board that your suspension was really a termination,

correct?

A. I don't think I'm arguing to the board. This is

a --

Q. What word did you use?

A. This is a Notice of Claim and Appeal of

Grievances.

Q. What word would you like to describe it?

A. Notice of Claim/Appeal of Grievances.

Q. So on January 27th, 2015, you appealed your

suspension and claimed that it was really a termination,

correct?

A. I -- I just want to meet with the board right

here, and I don't know how to go about that. I'm just a

faculty member trying to talk to the board.

Q. And you had the ability to provide documentation

to the board, correct?

A. I don't consider it ability to provide

documentation. I don't even know if the board gets this.

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I don't know what's going on. I would like to meet with

them so I could have some communication, but 2 don't have

any communication.

Q. Well, but you did have communication with the

board when you appeared on March 25th, 2014, and again on

October 28th, 2014, correct?

A. Absolutely not. That's not communication.

That's three minutes of one-sided presentation. It's not

communication, not by a long shot.

Q. And at both of these governing board meetings

that you attended the citizens interim for on March 25th,

2014, and October 28th, 2014, you were free to submit to

the board whatever documentation you wanted to, correct?

A. I don't know.

Q. Well, you did provide documentation to the

board, correct?

A. I provided -- no. I provided the content of my

three-minute presentation. That's what I was asked to

provide. That's what everybody is asked to provide.

Q. Flip to the page immediately before, right

before the January 27, 2015 letter. This is still

contained in Exhibit 2 to your deposition, the verified

complaint. This is a letter dated February 21st, 2015. Do

you see it at the top?

Aa Yes.

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have over 40 years of training in this, but my students are

not able to get any information that is my own.

Q. Let's go back to the October 18th, 2012

corrective action. And I believe we introduced that as an

exhibit, Exhibit 3 to your deposition.

A. Exhibit 3 of the deposition?

MS. MARION: Looks like this.

THE WITNESS: Oh, okay.

Q. BY MS. BALCH: So on October 18th, 2012, you

were told to issue refunds to students via personal check,

correct?

A. Yes.

Q. And you were specifically advised that failure

to do so would result in discipline up to and including

termination of employment, correct?

A. Yes.

Q. But as of March 20th, 2014, the date of the

notice of pre-disciplinary conference, you still had not

issued refunds to students; is that correct?

A. As of when?

Q. As of March 20th, 2014, the date of the notice

of pre-disciplinary conference, you still had not issued

refunds to students?

A. That's right.

Q. As of the November 18th, 2014 hearing you still

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Martinez vs MCCCD

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had not issued refunds to students; is that correct?

A. What was that date again?

Q. The November 18th, 2014 hearing.

A. Yes.

Q. And the Hearing Committee found that you did not

comply with the October 18th, 2012 and the January 9th,

2013 directives, correct?

A. The January what?

Q. 9th, 2013 directives.

A. What's the January 9th, 2013 directive?

Q. Read from the Hearing Committee findings.

Paragraph 60 of the Hearing Committee findings states, "At

the November 18th hearing Dr. Martinez did not provide any

explanation for her refusal to comply with the

October 18th, 2012 and January 9, 2013 directives to issue

refunds to her students."

A. Is that a question? I didn't get the question.

Q. I was asking if that was a finding found by the

Hearing Committee?

A. That was a finding.

Q. And the Hearing Committee found that you were

insubordinate, correct?

A. Where is that?

Q. Paragraph 66 states, "Dr. Martinez willfully and

intentionally failed to follow instructions that were

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Martinez vs MCCCD

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THE WITNESS: Okay. Ask your question again.

Q. BY MS. BALCH: In the section at the end of page

3 under Non-Compliance it states, "Because you imposed

charges on the students without authority to do so, you

have a responsibility to reimburse the students from your

own funds. You are hereby directed to do so by personal

check beginning immediately and continuing until all

students who paid you are reimbursed."

A. That's not true. I didn't impose charges. The

administration told me that students were to pay for their

own copies. I didn't impose that. That's what I was told.

Q. Well, the Hearing Committee found that you were

in violation of this directive and found that you were

insubordinate. And I want to direct your attention

to Exhibit 2, the amended complaint, document 14-11. This

is an August 25th, 2015 letter from Chris Haines to you.

A. Yes.

Q. And that last paragraph states, "Also, I'm

informed that a corrective action was issued to you for

selling copies of materials to your students in violation

of MCCCD cash handling rules and that you remain in

violation of a related directive to reimburse the students

the money you collected. I'll be working with appropriate

officials to address that concern. You may avoid

disciplinary action by immediately reimbursing the students

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directly or by authorizing the District to do so by

deducting money from your paycheck and transferring the

amounts due to the students." Do you see that?

A. Yes.

Q. So as of August 25th, 2015, you still had not

issued any refunds to students; is that correct?

A. Yes.

Q. Sitting here today, as of today's date, have you

issued refunds to students?

A. No. There's no refund. There's no refund to

give. That statement is false. For selling copies of

materials -- S did not sell copies of materials -- to your

students. I was -- and the -- it says there's a violation

of MCCD cash handling rules. That's not true either.

There has been no finding of a violation of cash handling.

So she -- she wasn't there when this was happening.

Somebody has informed her of these untrue facts that,

first, I sold copies -- that's not true -- and that I

violated cash handling rules. That's not true eithero

Q. I understand that you take issue with and you

contend that you did not violate cash handling policies,

but you were instructed to issue refunds to students on

October 18th, 2012, and January 9th, 2013, correct?

A. Yes.

Q. And you disregarded those express directions,

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correct?

A. Well, their basis is false. I didn't sell

materials and I didn't violate cash handling. And the

committee -- the Hearing Committee stated that there had

been no finding of cash handling violation.

Q. The Hearing Committee also found you to be

insubordinate in refusing to comply with the October 18th,

2012 and January 9th, 2013 directives; isn't that right?

A. I don't know. I'd have to look at that.

MS. MARION: Objection; asked and answered.

Go ahead and answer.

Q. BY MS. BALCH: I'll, again, direct your

attention to paragraphs 66, 67, 68, and 69 of the Hearing

Committee's conclusions.

A. What about them?

Q. I'm asking you, isn't it true that the Hearing

Committee found you insubordinate for failing to comply

with Phoenix College's October 18th, 2012 and January 9th,

2013 directives to issue refunds to students?

MS. MARION: Objection; asked and answered.

Go ahead and answer again.

THE WITNESS: There are statements -- the

statements you named that were made by the Hearing

Committee, those statements were made by the Hearing

Committee, the statement 66 to 69.

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Q. BY MS. BALCH: And this -- these findings by the

Hearing Committee were authored on December 9th, 2013,

correct?

A. Yes.

Q. It's almost three years later, right?

A. Yes.

Q. And to date, you still have not issued any

refunds to students?

MS. MARION: Objection; asked and answered.

THE WITNESS: You keep asking me the same

thing. Do you want me to answer again?

Q. BY MS. BALCH: Yes. Please answer my question.

A. That's true. I have not paid for the students'

instructional materials.

Q. Do you believe that it's okay to disregard an

instruction from Phoenix College administration?

A. It depends on what the instruction is.

Q. Do you believe it's optional to comply with the

October 18th, 2012 and January 9th, 2013 directives?

A. I think the administration should talk with me

about this, and they have not, and address the fact that to

ask -- it's improper, out of line, to ask a faculty member

to purchase learning materials for students, instructional

materials for students.

Q. You're saying that the administration should

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Case 2:15-cv-01759-NVW Document 73-5 Filed 03/03/17 Page 55 of 178
MARIGOF'A

COMMUNITY

COLLEGES"

Notice of Pre-Disciplinary Conference

Td: CleopatrEa Martinez

From: Gasandra Kakar

Subject: Notice of Pre-Disciplinary Conference'

Date: March 20, 2013

This is to notify you that aPre=Disciplinary .Conference has been scheduled for 3,30 p,m. on Wednesday,

April 3, 201a In Room 237 In the District Office located at 2411 W, 14.'h Street, Ternpe, AZ 85281,

Dr. Anna Solley, President of Phoenix College, and Gasandra Kakar, VP Academic Affairs, will be the

Hearing Officers conducting this conference. Judy Castellangs and Sheri Klein from the District Office HR

Solutions Center will also 6e present,

The purpose of this conference is to ensure that the decision to be rrSade concerning the complaints against

you as desoriBed In detail bel~wls based on complete and accurate lnformatian, to inform you of the

charges against you and the evidence in support of (hose charges, and provide you with an opportunity to

respond.

You may have a fellow MCCCD: e(nployee as your representative at the conference. The representative

shall; be present only to observe and not.to participate, Attorneys are not permitted to serve as a

representative. During the conference the representative shall be permitted to observe and take notes, and

be permitted a limited right to speak, to include repeatl~g to me points you have already made, explaining to

rime the significance of points you have made, and occasionally conferring. with you in a confidential manner.

The representative has no right to bargain at the conference, no right fo make your willingness to answer

contingent on a guarantee of leniency, and no right to speak for you in response to questions.

Alleged Violations:

Violation of Administrative: Regulation'6.7.1 - "Willful and Inkentlonai violation of any state or

Federal law, appl{ca61e ordinance, MCCCD Governing Board policy, or MCCCD administrative

regulat(on .that affects the empbyee's abll,(ly to perform his or het job", specl~cally;

o Violation of MCCCD's cash handling "rules as covered by MCCCD AdtnlNstrative. Regulatlons

1.17 (see altached~

Violation of Residential Faculty Pol(cy Manual 3.2.4 - "A Faculty member shall not have any financial

Interest In or receive compensation from the sale of any unpublished fnstructlonal materials

required or suggested for a class that the Faculty member teaches.."

• Violation of U.S. CApyrtght Law and fair use guldel(nes, and MCCCD Administrative Regulations

3.2.4 and 3..2.5 regarding copyright regulations:

3.2.4 Employees are prohibited from copying materials not specifically allowed by

the (1). copyright Law, (2) fair use guidelines, (3) Licenses or contractual

agreements, or (4) other permission.

MCCCD/Martinez 01458

MCCCD/Martinez02114

Case 2:15-cv-01759-NVW Document 73-5 Filed 03/03/17 Page 56 of 178
3.2.5 The Governing Board disapproves of unauthorized duplication in any form..

Employees who willfully disregard. this Board policy and/or the

aforementioned copyright guidelines do so at their own risk and assume all

fiabilfty for their actions.

`Violation of Admfn(stra4ve Regutatfon 6.7.3 - "Willful and Intentional failure to perform Job dues

That have first been communicated to an employee and are within the employee's scope of

employment", specifically, repeated Failure to folfaw instructions regarding prfntlng/copying of

unauthorized materials, failure to use only approved course mate~(als, unauthorized copying and

sale oP course materials, failure to reimburse students For the materials you wrongfully charged

them for, and faElure to meet the deadline t~ provide copies of any reimbursement checks to

students.

Brief Timeline:

• January 2010 -College Vice Presidents Ronnie. Elliott, Paul DeRose and Cassandra Kakar; along

with'Maggie tvlcConnell; Assistant General Counsel, reviewed the requirements of AR 3.2 with you

at length.

• April 2, 2Q10 —Anna Solley, Phoenix ColEege President, notified you that yourcopying privileges at

the Phoenix College IKON Copy Center were suspended.

Spring 2010 — An Administrative Evaluation was initiated based on Mr. Joe Sueyoshi s complaint.

By agreement, the Evaluation Team did not undertake its fa.sk until the fa11 semester. `fhe findings

and recommendations were submitted to dr. Salley on November 17, 20'10. The overall findings

included:

o Copyr+ght and plagiarism: Dr. Martinez was notified in v✓riting and In meekings of MCCCD's

and Phoenix .College's concerns regarding her course ~naferials violating copyright, fair

use, and plagiarism laws.

o Insubordination: Dr. Martinez failed ko foNow pr. Soliey's and MCCCD's Legal Counsel's

directives - specifically, stie repeatedly requested copies, copied and printed unauthorized

materials.

December 9; 2010 — Dr. Soliey administered an Initial Corrective Action to you for insubordination

and failure to follow instructions regarding printing or copying of unauthorized materials.

• August 21-23; 2Q12 -You told your MAT D91 and MAT 15i students not to buy the approved text

Rhat you listed on the syllabus. Instead, you made copies of a colleague's materials and sold them

to your students for $11 each.

• October 18, 2012 —A. Second Corrective Action For insubordination and unaukhorized copying and

sale of course materials was administered to you by Dr. 5olley. Included in the corrective action

was khe following directive: "Because you imposed charges on your students without authority to

do so, you have. the responsibility to reimburse the students from your own funds. You are hereby

directed to do so by personal check, beginning immediately and continuing until all students who

paid you are reimbursed,"

• January 11, 2013 —ltport discovering that the students who bought your unauthorized course

materials had yet to be reimbursed, Casandra Kakar directed you, via email, to provide her, by

January 18r 2013, with font and back copies of al! cashed personal reimbursement checks ko your

students.

• January 18, 2013 -You failed to provide Dr. Kakar with copies of any reimbursement checks and

neglected to contact her regarding the money you still owe the students.

• February 21, 2013 — A student turned in the MATD91 materials which you left in room 8210.

Timothy Bryan, Mathematics Faculty, has previously told you that you do net have permission to

use his materials again.

If proven, the allegations against you could result in d(scipfinary action including suspension or dismissal

from employment.

At the conference, you may:

I~~ICCCD/Martinez 01459

MCCCD/Martinez02115

Case 2:15-cv-01759-NVW Document 73-5 Filed 03/03/17 Page 57 of 178
a. Appear to present:an oral Dr.written statement in your defense; or

b. Appear with a representatiue.if desi(ed, and present an ora,f or written statement in your defense; or

c, Elect in advance in v✓riting fo waive the pre-disciplinary conference.

If you e.leck to attend the conference and present evidence, you must answer all questions trufhfully, If it is

later proven that your answers were not truthful, such dishonesty may result in corrective action. You may

present any testimony, witnesses, or documents which explain whether or not: the alleged misconduct

occurred. You shall provide ~ list of witnesses to me as far in advance as possible, but not later than one

hour prior to the conference. It is your responsibility to notify witnesses that their attendance .is desired.

if -you provide a response at the conference it will be revieweii and considered before a final decision on

d.isciplirie is triode, If you do not attend the conference and have not discussed rescheduling, a decision wlli

be made. based on the information available.

acknowCedge receipt of this Notice of Pre-Disciplinary Conference.

Employee Signature: Date:

MCCCD/M~rtinez 01460

MCCCD/Martinez02116

Case 2:15-cv-01759-NVW Document 73-5 Filed 03/03/17 Page 58 of 178
6.7 Employment Standards

Maric4pa Governance

+>'9,7: Einploymcnt `9tanfards

Page 1 of 1

home ~ about us ~ employees ~ search

Onllne Policy IVlanual

Ths fdlnwing rnnalilule~ Grounds for Afndplinery edbn, up to and Yicludinq txnilnatlon of eny Marlcope County Comrminky

CoCepe peUid (hACCCII) employee a~ auilhad try the roepeCllva policy manuals;

~ - ~q ~~f~tn~~u~~t ~y.~ ar►pd~u~tiv~ ~ i~w~ e~r~ccq oy~noaoer'dponn, .., ~p ~,~.~;y,~

~~CO- ~7i(r311v'S~fbyu7til~Tlicie'1f'ie'~A`tryNoj~ea~~dhl~~dty~~ .rto'tn'tila'ur.hx~

Z. Mrldnp, a false xlilemanl of a 1a91nq In A~doaa a melerld fncl h !ho coupe of »eklny erty~iayment.of re-eselpnment of

pos111gR et MG~CD .. ...... ..: _ - _ .~:. .

3 ~~,~eZ,d~lt~nJ~~ft(Sv~iJob.dUtki+lhel.liu'ie lkel been46mMunksted~b sn'sitiployee and ere Y,i9t17i1~n ~.

em I~isco~Sltwnpk~ymMt ~

4. WIYWI Ynd~lillartUond eomrnNrnent ot~xb of Iroud, IheB, embazzlercle~l, mleepproprieibn, IaWfkaUon of recoid~ nr mlw~e

of A1CCC0 funds, gaod~, property, selvlces, leclvfolopy or oN~r re►atrce+.

5, ConviUlott of a felony of ~mltdanaeriu( Iha( edvnndy e(fecle an empbye a'e aolllly fa petlorm job dvNea a hey en adveroe

etfnU on MCCCO N e+nployrnent li congiwed.

e. F"Iphllnp witli a (o~4ivl employes, Hdlw. of eWdiuN, except to s~tf-tl~(en~a. CamMllJrp ads of hUmNf attar, hsroauneni or

vldence, lndudkq (hut not tlrtJied loj oral a Wr1Hen ~letemant~, pe~lurea, or expteaabnc Ihal canmunket~ ~ dkect a

lndrocl tl~reat of μhyekv harm.

7. RoporWW to wuk under N~ InfWence W alcohd evuVar f➢egal drupe w narco~: the use, srle, dl~pemMp, or poaseeelon of

a~cohd andla Alepal drvoe a nnccdlce on ~1000D prmnisn~, whlSe conductkip MCGCO bu~trt~ai, o~ ei any Wna Nrhlch

wolAd Intaftere wiUi IhD dfeclNe conduct of the amyloyee'a wak fm the MGCCA; the use of plep~l 4rups; a leelhp ponilWe~

for ~e~0e1 drutl~ The ixcep0on world lncM+de the ewl~umpuan of e7enhd al a receplk~n a slmNet oven! el wMch the

employee'x presence le c{enitywllhM the seopa of mnploymanL

8. Pou.e~+lnp ~(roarma a otl~x weapons on MCCCD property. oxcnpl e~ may pe requlcod 6y U» Job a ~e olMrwlee permltlnd

6y law,

8. Abandonment of one'a puslUon.

10, InlrnYooel dnUuUlon a Ihrest of dwWdlan o(MGCCD property, with melkbu~ MIenL

~ ~, paAo~minp aria a execuinp Jnb reapm~IClMllee In a rackks+ manner Ihal pmn a Ihroal to Iho phyatcd eafoly of the

employc0 0! erlolhar penan.

12. Felluro by the Cdlapo Pro~bent, Vice Cbencaibr, Cheocelhr a other seMor lovel edminleuatws to wury epproprlaln law

enfaumenl auMarllbs of arty potential IheR of Qletrid t~nde w naaeli,

Stntamenl on Rohirinp

F.~npiayae~ ~9oeid approved and otAerwlee) who are termY~aled a non rerwwed due to a delerminagon that the err~loyes hat

v18leted Merimpe Employment StardnM~ a~ ed forth above, or who re~lpn In bleu o(euch lermhetbn w non t?newei by npreemenl

orotherwlee, ere not e8plble fa M~fre wAbh Iha Mnttcope Canty Comrr~unHy Collopa Dlatrtcl. Emplgeaa w41 Ee nfforde4 polka of

Wch b OelemJnelton~and e~ oppMuWty io be heard puravenl b the eppflcahle employee pd by a edminitt(etiva repWet4m.

The V1ce Chnneeifw fa Numen Resources lc re.ponnl6{a la rrAeH1nq doavnented Wolellona of ampbymenl el6ndq~da,

entnbWhlrry pre e<kiro~ far.Ne reNow o(fecommended dbcipllnery ndbn to be taken, and defe`minlnp vhether the recnrrxnended

OlarJppnery ncllan Is con~letanl with ttw documenlad vbleQon~ of the employment alandarda. The Vka Chancellor fa Human

Reeourcoe aheN have Mat authority to rncanrnend dlcdpllnery action uritler W ~ polky and shall dowmenl the reNonele {off ell

decislona. To the e~ant Thal the recnmmeMalkm for dsclptinary scoop by the Vke Chancenor for Human Re~aurce~ ~lero from

Iha recommendation of the empb/ran'a CoOepe pme{dant or Vice G~nnceflor or airier Chancelb/~ E~ecullve~Coundl Member, the

Chancellor .andl be canwlled and d~111 rn~ce the Ilnd rerotmtendelbn on dledplinery ectlon, Tha Vke Chertcnlla fnf Humes

RaawXcee efisll make recortlrnendaUorN that Involve the Chancedof.

Ovededy, a wmmnry report shell ba ~uhmllted to Ne Governlnp Board on dladptlncry ncllon~ leknn punuenl to Ihla poryiy.

AMENDED June 2E, 2011, MoFlogMo. Yb~E

AMEN~EO February.27, 7011, Mutton No, BToi, B7E2

ADOPTEb F~6ruery 2T, 2007, Notion Mo. B~U1

Print SeeUon (Ado6a Aerob~l—RegWret Ado6v AcroGel Readnr~

OPS Wqb I►ruesT

CofAed Tina Emmons or yoix CoYege Fle~p Desk

~u~atbtlt of cwnm~nls'1

y. e ~ c o n . C~~{ Tortaa Toney ~ OMce o(PuWc Slewarcfenlp ~ Zit 1 Wast t~th 5tr~at ~ Tamps, AZ

GO L 44 4,f f• B52B1-88 2 ~ ~80,731.BBBD ~ 480.791.8619 Ian

A dMdon nt the Orrice of General Counsel ~ I4] 1 Waal 1~U~ Street ~ Tempe, ~AZ 85241-69 2 ~

480,731.8877 ~ AB0.7]1.BB80 fez

tepal Sorvices Dlsdelmef ~ MCCCO Dlsdelmor

O Mericopa County Cw'rn~r~Ny cvllage ~slrlcl. AN Riphta Ro:nrveC.

Ten mirages speclaliiln8 (n university transfer, contlnuing 2ducadon, career and )ob Galning praarams

note dlsdakrw ~ contact ua

http;//www,maricopa.edulpublicstewardship/governance/adminregs/board%20resources/b ... 3120/2013

MCCCD/Martinez O1

MCCCD/Martinez02117

Case 2:15-cv-01759-NVW Document 73-5 Filed 03/03/17 Page 59 of 178
1.17 Cash Handling Page T of 1

home (about us ~ employees {search

Maricopa Governance

Online Policy Manual

;~,t;1,7'Csh::HandllnB

scop. ur cov.rou• orth~a ReyuAtlon

Thb repulaUai moron ell Msrknpa County Commvnlly Collope OleUld (MCCCDj ampiayeei a oMce~ Qntludinp, bul nd Ilmlbd b:

ell rmp)oYent-8oerd-sppowd.orp~M1Gms, casNen oAice~, pafarNnp eM centa~, ~thblk feclll~e~, proprom oflkae, elc.) thel

gasp! peYmenl fa erry I.I000D ~orvice~ a donsUm~ pncludhp, bul nd &rdled lo;. UlNon, faa►, dues, avenl tickale, etc.). Cesh 1a

de11ne4 arcdn., aurency. chadca, money ordefs, credll cards, eledro~lc fund, Vnnsfen, end ell ceM epuNalonle QnGudtr~g, 6ul

no! 4nilad b: lokan■, plft card•. lultlon welver~, perklnp Uckola. etemp.).

G~n~ral Standard.

i. 7o enwro slton9 Internd eonUd~ over ce~h heMling, b asteguarA apalrat boa end to meet our obllpgflal lo~the mrnrtxiMty

a~ tleWerd~ of puhlcro+~'tet, P» fdlowlrp elemml~ of hlmnel wnkob moat be eared lo:

n. Proper aegregeuon d duties p.a.~ dual c«iUds)

8. Spec:flc sa(epua~ds fw hendUnp, transporting and slorinq cash

C, Specific sakguards for deposits

O, Independent recanclYatlon of deposll documents to recelpW

E. Managemanl werslght end review of cash handling proceesas antl perconre~

2. Each colkpe and the DlaNcl Otlke are required to esleblUh written procedures for' eq~locallau ~hei henNe ca ah. Stroh

procedutae ~haN en~we compVen~e with aA of Uw raqulrod Inlemei conlyd el~mem~ kfenll~ed In i. Such proceduroa shat!

eddfere aY cmird elamanl~ Idenlllled In 1 try ~dlec9ng Iho ~paca, phyak~l conRyurellm,~~ls(1 end olhar paNalec~ of eac?~

locellal.

3. Tho'LNsb1d'a Bu~Snea~ Serviron dlvbbn wtl review ouch wAllen pr«adores Inf polenllel eves. aI concern nlalhp 1a the

required Inlemd cm4d ebmenle. Suds cnnroma wN ba rwlad end wmmuriceled Gsck fo yie appilesble Cdlepel0laUlcl

omee ra Nrmer.e~wn.

A. On of about January 1 nl of eedt yaer, each c~lega end the Olslrk( OMcs w(e to review the w~fllon procedulee tofellnp to

cdah hendgnp~ 1f elpdAcenl~dwgex nro ~equlred. euch changes ere to be revlewad by fhe ~hG1U's 6u~4n~n SeMce~

dlvidon ai in C, above.

S, 1'~e DleYfcl'a (nlemd Audit end A{w~egemeni Advisory Servlcea Depertmnnt.mey teat Pie wrtUen proceduro~ (ofarnplle~ce

in accordance wllh Ih~l(aate6tlehed audA p{en.

B. if Inappro{xtele adlvlry I~ tuapscled of 4e~ertnined (i.e., e pellmn of ceeh s11.or;apea, forgery of alteraNan~ of diaclu,

trilenppgcetbn of tulllvn w~ivere, b►~ a damage io eewrnlec, compule~ freed, etc.J, the colepe a DlalAd Otike'sbtt~

nNould irtxnedkley no111y.Nek appropr4eb Vke Prenldeitl a Vice ChancalVo~, w7w ■hould then nallty Rlak Nnneyemenl end

InlemW Audk en4 Men~pemea~ Mvl.ory SenAce~ o(eny me! o~ potenllal to»e+. Tha ralh9ce11on~ elated e4ove are alllcel

as MGCGD hay s trotted dkc4wry poriod h whkl~ to fagot wch eclfvlty to our hnaurance~cartler,

7. If II 1~ wspeded that q Ihell hee xcvrrod. Ih• eppinpdab law entorcemeM euthMUee mull 6e nollllnd.

B. MrKiatty, each empkryea rospoMible for Aendlinp caeh wPo be requ(red to aomplele nn adtnowledpsmenithat lhay hove

road dd agree In r61de by ~slebished proceCufef bf prnpnt hroWlhp of ce~fi.

E. Arxwa~y, eadi Vice Pre~idenl a eenbr levol edmMd.trebr v.~m .upervlaory ar management reeponslblUy for any end eh

arses Ihsl hande ceY1 end the colkBe P~eefdenl mM Vlca Ch~nce~bra wNh any and eN rospaiatbAlly Ia ce~h ~haA

eomplale an ~ckt~owledpenrent Ihel ihsy xIG enferte the oelablishad procaduraa for the ptopw 7widp~0 of cash.

10. The Vico ChdtcNa Foi Buslnee~ Servkee shop develop. make w~le4h and Ns the eulhorlty b roqulte vekdrp as may be

nppropriale b~ am/ and eA persotu hacMlkp wsh of euparvdalnC thoea Mdlvlduals al lhn cdlagee, OlalAd OtAce eteny

dlefrld bceUat.

TOP

ADOPTED Dy Ih~ Governlnp BoerA, Fobruary Z7, YOQ7, Motion No, Dlt 2

Print S~abn (AAo~e Acrobat—Reyukea Adobe Agobat Bonder)

OPS W~61~cwsi

Cabled. Tine Emrtrom or your CaAe9e Help DcsN

QuuUon~ or comm.nf~9

u ~ w ~ c a r • lea Taese Toney ~ Oface al Pu61k Slewerd~hlN ~ 1{ 1 t YVrsl t~th Slreel ~ Tampa, AZ coNuunitr B5281-BB~2~fH0.771.8080~4E0.7Jf.8810 fax Cn IL[OS ~'

A divl~bn of lho OMca d Ganefd Counsel ~ 2~7 S Weal 1 iih Sirect ~ Tempe, AZ BSZdt•88~2 ~

SB0.731.86T7 ~ A8Q.777.8BB0 frx

Legal Servke~ Di~dai~ier (MCCCA Olsdomiat

D Alegcope Ceunly Comr~unlly Cdhpe ~IelAc1. All R1phlsRe~erv<d.

Tencolleges spedalizing In universlry transfer, continuing educagon, career and }ob tralning programs

note disclelmrl ~ canlud u~

http;//www.maricopa.edu/publicstewardship/governance/adminregs/fiscaUl__17.php 3/20(2013

MCCCll/Martinez O1

MCCCD/Martinez02118

Case 2:15-cv-01759-NVW Document 73-5 Filed 03/03/17 Page 60 of 178
33.Z.

3.23

Other provlsfons may be negotlated by the Faculty. member 'and MCCCq and

added to the contract. These may include tf~e ablllry to edit ar~i contrd the

presentatlon of the work, the ability .to change and update materials over kime,

the ability to aeate der(vative or related works, and the sharing of costs and

revenues. associated with the commercialization of such work.

A Faculty member shall not, In cnnneetlon with any lass, suggest or require that

a student purchase Instructional materials which the Faculty member has

produced; br from the purchase of which tt►e Faculty member or the Faculty

member's designee Is enht~ed to royalty or similar consideration, unless the

maCerlals have been;

3.2.3.1.

produced by a "recognized, Independent publisher," defined as a

commeraal entity in the business of publishing books, periodicals, and

similar instructional materials; and which performs editorial, printing,

distributlon, marketlng, and other functions typically assodated with

cammerclal publishing at the publisher's expense; and

3.2.3.2.

previously approved for students' purchase by tha Vice President of

Academic Affairs at the caUege where the Faculty member teaches the

class,

3 2:4 ,: ,.

A Faculty member shall trot have ar~y ~nantlal Interest fn or. receive comper7s,~tlbt~

frorri~the sale of any unput~flsheci instructionalmaterials.required or 5.uggesLied for

cia~s that;the Faculty member teddies

3.3: Persona{ It3ghts

The Governing Board recognizes that the personal Ilfe of a Faculty member 7s not: an

appropriate concern of the MCCCD, provided It does not affect the Faculty member's

effectiveness to fulflfling ptofess(onal obligatlon(s).

3,4. Visitation of Faculty Members

Brief doss visits by administrative and/or staff personnel may be conducted without

notice to the Faculty member (n slhratlons that need Immediate attention for the norrnai

operation of the College, for example, the safety and welfare of the Faculty and/or

students. These visits will not be used for the purpose of the Faculty member evaluation.

3.5. Faculty Evaluation Plan (FEP) for Instructional Improvement

Inasmuch as the Faculty is committed to quality teaching and lnsCcuctlon and fs

contracted to provide professional services to students, colleagues, and the. MCCCD, khe

faculty do hereby agree to adhere to, support, and Implement the foGowing selfevalua~lon pol{des and procedures.

3.5.1. The objectives of khe evaluation program are as follows:

~:'RfPPoIlcy Manual -1.2-

EffeCtive )uly 1, 2012

MCCCD/Martinez 014(3

MCCCD/Martinez02119

Case 2:15-cv-01759-NVW Document 73-5 Filed 03/03/17 Page 61 of 178
3.2 Copyright Regulation

Maricopa Governance

Page 1 of 1

home ~ about us ~ employees ~, search

Online. Policy Manual

2 copyright Regulation;

,:.,,, ..: 5... .

1, 11 Is the InlerN of he Goverainp Baerd of tha IAeAcopa Courtly Canmunlly Cotepe Dlelric~ to adheta b the provislonc o(ihe

U.S. Copyrlph~ Law (i1Me 77, UnRed She lei Coda SecNw 701 0! seq.), Though Ihere canik~ves b 6e conVwerry reperdhp

Inlerpretegon of the Copyriphl Law, lhln pdicy ~esur-ienls e dncete.ottMl.by the Soerd to opMele legally wlli~l~ the Dl~lrtcli

2. Tho Gwert&~q BonN dtada Una Chencnlla a hls dealpnce(s) b develop and dlauibule to empbyees pWdagnei that (t)

tleerly dlscourepe vlcdetlan of the Covyrkhl law snd (2) Inl«m employees d Ihdr riphte and responslblYtls~ ~ndu the

Copy~iDhl l:ew. ~ .

3. Eel tollege pro.ldent of prnvoel and the ChenceNw shell name en ~ndNldud(a) ai each dletrlct IocaHon who v+ltl esaUrna

the teepon~k+HlUes of dI.WDuWp copyrlghl pWddiney, ed ei e ieeource person raperdlnp mpyrlOAl matter and pioWde

Ira7nln9 PtoL~eO~+on FwfeM copyl{pbt Jswa. ,;,.__.:,. ;, ...-

S,,[ha Gpvo~,s txo~a~amosw~tu!isulnatr,a avva~u~n iomJ~+m ~!np!.oy~+~ wn°•w.~i~F'v ~n.~~{wr 

.P.~IFY.enc1!oi~Nlepfor?!R~lotwd copyAfll~tpWdMfnta.do ao M Nelr.Q,i'n 1h%And eeswne e51 Nah01t~ Iai' (F~nif

b In biCe~ lo.s~~ttl eaipinyeoa arts! elUdents In carpFj~np wkh1M Copyrlpht Law, approptle~e nodce~ ehaA ha

~ee~ eM equl{iment capable o! dupgcnYng rnpyr4pMad matett~4.

Whal SludenU Should Krrow AAoul Cnpyrlpht

AMENDED lhmagN th+ Adminlslragve Regilla tfon +pprovd procese, Auguet iB, 200R

ADOPTED Into Gowroence, Saplrmb.r 2~, 1990

AMENDED MaUoa No. 8894

AMENDED Mellon No. BEL6

AMENDED Motion No, 0696

Founding Source:

6nwrning Board Mtnule►, Dx~mWt 12, 7968, Molioo Na, TY~{

Print Sectlon (Adobe hao6al—Requlrea ~do6e Acroba! Reeder)

OP3 We61~au~~7

Contact Tha Errwnons a your Cdle9e Help Des1

.Oue~tlona or comm•nh?

u ~ a ~ c o r r Conlecl Ternae Toney ~ ORke of Pub!{c SteweMshlp ~ 2411 Weal 141h SVed~ ~ Tempe, AZ

~ouuuN~.r ggy81-80~Z~+180.771.8880~~86.7~7.88t01e% COLLC Of ~'

A divlebn of the Office of Genefaf Counsel ~ 2171 Well idih Stroal ~ Tampa, A2 H51B16942 ~

~80.T319B77 ~ 48D.791.8890 faK

Legd Sixylcea Diecledmer ~ MCGCO OlzcMlmef

m Merkope Counh ~~M~tinity Cdlnpe Dl alrld. AN RIpMe Reeerved.

Tart colleges spadaUxlnp.ln unluerslry transfer, contlnulnA education, career and fob training programs ~

note dlndalmer ~ coaled us

http:/1www.maricopa.edu/publicstewardship/governance/adminregs/insh•uction/3_2,php 3/20/2013

MCCCD/Martinez 0]464

MCCCD/Mattinez02120

Case 2:15-cv-01759-NVW Document 73-5 Filed 03/03/17 Page 62 of 178
Case 2:15-cv-01759-NVW Document 73-5 Filed 03/03/17 Page 63 of 178
Case 2:15-cv-01759-NVW Document 14-2 Filed ~.1/QQ/~.5 Page 1 of 4

~n A ~, c o p ~ Rufiis Gasper C~OptM1UNl7Y

C (3 L L E Q~ B` ~h8t1C~

2411 W.14th Stet, TemPa Araone 85281-b9~42 • T 480.731.8200 • F 48x.731.8120 • r.~asoeriAdUn►e~x~s~fcope.edu

August g, 2013

Cteapatria Martinez

703D N. 29'~ $treat

Phoenix, AZ 85Q20

Rye: Intent !o cq~ml~s you from your employment

User pr. Martinez:

Ur, Anna Solley, PI~9sident of Phoenix Collog~ (PCj his forwer~d~ed ~ steterttent of charges to Jannes

~ower~, Pntedm Vice Char~cetlar for H~xnan f~+~ourczas. Mr. E~owet~ has reviewed the charges, 3n

car~ultatlon anth the MCC~Q I.e~a1 dice, and r~cammended to me that them ~xl~ts prima tac~e

cause for your diemts~al t'mm your poa~itian ais Matt~maklcs F~acuky at Phoenix College (aee

altachedj. i cxanc~r with hie reaamme~ndatlort. 7t~ recommended ef~active cl~te of year inv+~lurrtary

terminallon Es September 2~, 2013.

M~rlcopa County Cammunity Coll~ge Dt~tr#ct Admknistraflve RegWatian 8,7 mates t~~t violation of

any of fits Employrr►ent 8t~ndards "aonadh~tes grounds for diecip4lnary aotfan~ up to end including

iarm(nation of ~r~y Maricopa County Communfty Co11~ge Districk (MCCCD) employee as ouklined by

the resp~ectiv@ potioy manuak".

F~urauant to Sel~tian 3.15.3 of the RFP Pa~cy Menu~l, you may evoke your righk to ~a hearing by

ling e writG~n request w~ri l~terim Vice Chance~r James ~awers within lt~e (~) bueinesa days

after beJng served wlfh this natice of ir~ent to dismi~a you Rom your ~mployrr~~rrt.

SinoerolY~

Rufus Clasper, Ph.Q., CPA

Chancellor

Cc: MCCCb Gou~ming ~n~rd

Dr. Anna Soliey

Mr. Jtm Sawere

EJ(H IT _..~

wir: ~~ 1' < 

--

DATE:. ~.~.~..~~~~+..SY .

Angela R Miller, RPR, CR

xtn cntkges wrdlrtw a~k/R anlenr daifmkd fn atuAuif succrsa.

Ci~andler-Citbar! t E~rgl(e Maur~in i (ieteVVay i t3ldndela i Mesa ! Parectt~e Valley ! Phaar~c

Rio Salado { 800lladnFa 1 Saubh MnuMatn 1 Msricopa 9kNl Ca+xer i SauthWest 8kk~ Cq►ner

Case 2:15-cv-01759-NVW Document 73-5 Filed 03/03/17 Page 64 of 178
i

Case 2;15-cv-41759-NVW Document 14,2 Filed 11/04/15 Page 2 of 4

`,

gQ1~A1UNIYY ~~e Chart~eiior

a a ~ ~. e +a e s° Human ~esourcas

zdu w. xmn saw, zsrr~~, ar~uma ~a2ei~s~tz • T aeo.r~i,siaa + ~ d60.731.a~ 2a ~ www.mm,~oca.~a~,

August 9, 2Q13

~leopatrla Martinez

7Q~0 N. ~1~' Strut

P~oen~x, Az s5azn

RE; Empfayment Status

Clear Cdr. Markinex:

You are being pFaced on paid acfminis~'ative l~~v~r t'rom August 12 through

September 24, 201 ,pending the approve! of yaur termin~tinn. During admini~trativ~ l~~vs~ you will r~m~in ~n employee of Maricopa County

Community Catl$ge District (MCCGD) and must continue td observe III policies

regarding emy~ioye~ conduct,

nor fhe dur~tfpn Qt p~kl ~dmtnlstr~tfve let~rre, you shatW not report to work nor

do qau need to make contact wifh your supervisor. Upnn approval ofyaur

t~rmlr+atian Icy fh~ Martcopa Gounfy Cnrnmunf~y Caflsges Goverrttng Board, you w~i be r~atiHHed regarding the termination of your employment status with

MGCCD.

~incerefy,

era, 3.~,.

interim Vice Chanc~ellorfor Human Resaufc~

oc: Dr. Anna Salley

~mpt~yee Personr~~i ~il~

r~„ mrreern an~r tuN skr~1 an~cs ~rnunrd n, Rluaa~t a~~ca~.

~1ann?er{~he+l ~ E.sfie~ DAo~R~tn 1 (3pteNleY i Cab 1 16es~ i Paradise Va~eY I PhnenBc

iSa Satsda t Scotts~le 1 gouts Mow~taln I Nf~tcona SI~I! Center 15o~ihY~ast ShIU Canter

Case 2:15-cv-01759-NVW Document 73-5 Filed 03/03/17 Page 65 of 178
Case 2:15-cv-01759-NVW Document 1.4-2 Filed 11/04/15 Page 3 of 4

at a R i c a r a Vice Chancellor COMMUNITY

C 0 l L C Q Q 9' ~. ~~h ~eSOUCCe5

2411 W.14th 5lrest TAmpe, Arizona 85281-&942 •'C 480.731.8103 • f ~80.73l.812Q • www,msricope.edu

August 9, Zo13

Dear L7r, Glaep~r,

The fallowing statement of ch~r~es apalnst ter. Gteo~h~ia Martinez was funNa~ded W me by De•

Mn~ So~ey, President, Phoenix Cdisge. Pursu~~rt to 3.7 5.1 aF the Reskier~iai Facul~r Palley

(~tFP~, I have reviewed the 6har~es, in consultation with the MCG~D Legal OHlcs, and

recommend to you mat #here exlsta prima facie cause !or the dlsmfasai at Dr. Cteapatria

Martinez.

81n~ere

~m , .l.n.

Ittt~ritn Vice Gha~ncellar for Human F2eswurc~s

Statet~tten~ of Charges

• Vlota#fon of Adminfatcative Regulatlan 6.7.1- "W'afftal and Int~nE~onat viatation of any state

or fiedaral I~w, appiicab~ ordinance, MCCCD a~veming Board policy, or MCCCD

adrniMetrative regutatlor~ that weds the empl~rea's ability to p~ricmm hIs or her job",

spastically:

a VloiatWn of M~CGD's cash hand~n~ rules as cavenad by MCCCO Adt~ninistrotiv~

Regulations 1,17

• Violation of Ftesid~ntfal Faculty Pnli~cy Manuel x.2.4 - "A ~acuit}r member shall not hays

any ~r~rncied interest ~► or re~eiva compenea#I~an from the sale ort any unpu~lishe~

trt~truc#ional mater9als required or suggested br ~ class that the Facuriy member

teaches.'

• Violation of U.S. Copyright Law end fair ase ~uldegnes. ~r~cl MCGCD Administt~ative

Re~ufetlona 3.2.4 and 3.2,5 regardh~~ copYr~gM ~9uiat€~ons.

3,2,4 Empioyeee ire prohiEr((ted t om copying m~teriafs not speciRcalcy

allowed by the (1) capyriyM t.aw, (2y lair use ~uitieitnss~ (3)

Lfcenaea pr contr~ctttal agreements, o~ (4} other permisstan.

3.2.6 The C3avemin~ Board disapproves of unauthorized dupifcation in

any farm. Em~layees who wi1N'ully d(s~+eg;ard this Board policy and/or

ttre aforementioned copyright gutdetinea do sa at their own rt~k and '

+aa~auma afl Ilabilfty for their ~ad~ans. .

?ihr rolfe~xs mai trmt sk~lf cerrten dallentrd lv,etudbit 3~ur~s.

Chest I ~sb~il8 MCuraehl i Gateway I C,len4ep9 I IAe~A i Pel~1lssValky ! Af4o9f19t

Rio Salado 1 Scottsdale 1 Saudi HAi„mtdn i M~ricapa SkNI Ceder I Sm,C~IMest 5kif Gaoler

Case 2:15-cv-01759-NVW Document 73-5 Filed 03/03/17 Page 66 of 178
Case 2:15-cv-01759~NVW Document 14-2 Filed 11!04/15 page 4 of 4

Vlofatic~ o! Admix ►dire I~u~lon 6,'x.3 -'9A~ilh~ and itner~[or~el taHune #o P~rtam jab

dutC~es~th~t.t~ave flit tai cottimumia~d~t~ ~n ea~nploy~,ar~d.are vWt1~i1 the smpicyR+~`~

ec~o~e► ot~ernpfoymertE~~ s'~ k~t~alty► +a~+eid; fai~r~ fo tci~i+r irre#t~ctiorts t~e~ejrt~ng

p~tin~ico~j+&~I of ~tneu~i d:ma~at~ls, i~c~na ~b uea an y apprrn'rad ca~rse mom,

unauthorixtii~! copyir~.anc~'sai~ ~r`E cn~ae tt~ateri~l~, lap►,~e to r~~ ~ 4'a' ~►e

mater~te.~roa Wr~n~lupy char~ext therr~ fors end fa~ure tb met tP~ dead~ne t~ prpvW~

copE~a of ar~~r retmbtmReme~t oheck~ ta~~uufer~a.

8~9~1 TIm~lin~;

January 2g10 » Coil~~ VIcQ Presidents Rann~a ~litc~t, Maui C)eRase and Cassandra

K~kar; a{ong with Mangle McCorn~ll; Aaststant Denera! Counsel, rev(ewad the

requlnemertts of AR 3.2 with you at length.

• Apri12, 2010--Anna Sbik~y, C~Itosr~hc College Press nc~t~i~d you that your copying

prhrlfeges ak the Phaen~c College IKON Ci#py ~tfitet there suspended.

• Spring 207 0 ~- Ar► At,~n}n ve ~ir~lt~~oc was ihlk~a~ec1 based An Mr. Jae 3ueyoahi`s

complaint, ~y agnaemen~, the ~v~1u i Team tad ntlt and~rtake it's task until the ~a~

seme~br. The flndh~gs attid`t~omtttenda~ot~w~dre eubmitked to Dr. 5oltey on

November 17, 2010. The overall findings inducted: -

o C.~ g~t~ aid ptagta~im: I~r. hf~tN~ w~ nct3fii~d in writing and in meetings of

MGG~CC7'a~ ~d f~twet~t Coitus"e rrtg t~egdiridinp her course materials

vtcia~g oap ht. lair tm~e~ end p~l~a~iarlatn tail.

a lnec+bpmibl on: Ufr i~arr,U~ie~ t~ltle~# to ~nlI0Y+1'Ih: SoAey's and MCCCD's Legs(

Ccnanse!'s dineciives - speciti~aly, shs repeatedly requested copies, copied and

printed un~uthorfzsd m~tarial~,

• C?eo~mber ~f 2n1q -- Dr, Sa11ey administered an tn1t~! Cnrr~ective Acton to ynu for

insubor~nat(on ~ncf failure fo follow In~tructinns rega~dir~ pdnttr~ w copy~ng~ of

unauthorized m~rtala,

• .Attgiust 24~Z3; 20'~~ •You bolts your MAl' 091 end NWT 151 students not to buy the

app'raVec! !,e#~th~~Y+~u It~teti ai tPre sytlabue, fnstead~ Ynu made copies of a cnile~pue's

r►tater~~ a►td Bald ttt~m to _Xotb'students tar $t 1 each.

Cktaber t6, 2tf1~ ~ A 3ecbnd Corrective Action far insubordination and unaWharized

copying and sate of cowge'~ w~s'ti~teted to you by Dr. Soiley. Included ~►

the comecthre e~ction wad the ~!l~w►►tn~ ditec~ik~l: "~e0au6+~ you Impgsed aharg~s an

your students without authot`~y La do sq, ya~u haul ti +9.re~onslbiHty to reimburse the

~tt+~er~ts fit your o+~t. tt~tid~ Ypu ~ het~by dtre~ai to. ~a sa by psnsanef check,

ISM .~Ntrt~dlptety and:+mo~l~ unto ~ wtha paid you are reimbursed."

.lant~auy 7'# ~11~9 — Up~t1 ~~av~tt+t~ ~tith~t ~#udenbs WtiO bought your un~trUwrizsd

Cat~rBe if~fier~ala ~Cl ~f tube ~9hti~bt~rd,. C.~t1dY~t K~tai' diredpd you. via small, to

pro~aCe t'tar'~ kiY J~nuar~►'I8, X013, wl~i front andb~rdt c;dpi6~ of ~!1 cashed personas

~re~mbt~rae~t c~i~oks to yl~ur st~enbs. ,

.~~nu~► 48; 2pt~ - Yau;~ed to e pi Kardter~wkh cap~iea of any reimbursement

CFt8dC8 ~I'ld rl~giaCted tO•C~t84t hBN'' C+~eidl~ tt18 +'~tp►19~ you still t~we the students.

• F~,(S~yu~,ry 21 ~'.3~G~F3 — A stud~t~tc~d~i M, trie tNy,A~,`t,~'! materials which you {ett in roam

~ F Y• Ot~il ~ ~ ~,~h f i% r I t4a pC8Vi0u8~y t~{d you thQ~ You do ~1ot

ham: p~t~rih~ctt fo cue lr1~ mabari~fd a~~ht.

fi

Case 2:15-cv-01759-NVW Document 73-5 Filed 03/03/17 Page 67 of 178
Case 2:15-cv-01759-NVW Document 73-5 Filed 03/03/17 Page 68 of 178
Case 2:15-cv-01759-NVW Document 14-3 Filed 11/04/15 Page 1 of 3

Stephen Montoya Montoya, ji:menez & Paseor, P.A.

Attorney at Law 3200 Noxth Central Avenue, SuiEe 2556

Phoezwc, Azzzona $5012-2490

Tele: 602-256-6718; Fax: b02-256-6667

s teplien@m a ntoyala wgroup. cozn

August 76, 2013

SENT VIA EMAIL (JAMES.BOWERS@DOMAIL.MARICOPA.~DU},

FAX (480-731-8120), AND FIRST CLASS MAIL

James Bowers, J.D.

Interim Vice Chancellor for Human Resources

Maricap~ Community Colleges

2411 West 14th Street

Tempe, /~rizona 85281-6942

Re: Cieopatri~ Martinez• Request far Hearing

Dear Mr, Bowers:

Pursuant to Section 3.15.3 of the Maricopa Community College RFP

Manual, Dr. Cleopatria Martinez hereby invokes her right to a hearing regarding

her proposed dismissal from the Maricopa County Cammurtity College District.

W~ ask that the proposed termination of pr. Markinez be rejected because

it is based upon a misunderstanding of fhe underlying facts and applicabE~ law, in

addition to improperly ignaring Dr. Martinoz;s twenty-eight years of exemplary

service to the Dis#riot. '

f will be serving as Dr. M~~tinez's legal counsel in connection with the

proposed dismissal

Thank you very much.

Sincerely,

Stephen Montoya

0

.'F

MCCCD/Martinez 04005

Case 2:15-cv-01759-NVW Document 73-5 Filed 03/03/17 Page 69 of 178
Case 2:15-cv-01759-NVW Document 14-3 Filed 11/04/15 Page 2 of 3

$(~~ Page 1 of 1

April Rolf .

From: April Roil

Bent: Friday, August 16, 2p13 1:55 PM

To: 'fames.bawers~domall.maricopa.edu'

Cc; Steve Montoya

Subject; Cleopatria Martinez

Attachments: martinet—letter bowers 01.pdf

a

Mr. Bowexs:

,,

PXease see attack ed letfex of toda~r xegarding Ms. M'artiziez. The originat wzIl follow by first class

mail.

Thank yt~ia:

~.pril Roll

I;~ga~ Asszstart~ to Stephen 1VTontaya

Montoya, Jimenez &Pastor,, P..A. ;~~

3200 N'.orth ~~ritrat ,A,venue,: Ste. 250 .. _ ..

Phoenix, A.rizoxia $5012.. ~ .,

Tele: 602-256-67,8 Fa~c: 60Z-256-fid.67 .. _...

This efeckranic mail; transmJssion contains information from Montoya, Jimenez &Pastor; P.A. that may die confidential

andlor privilaged. Such information is solely for kFje infentled recipi~nf, and use by any other patty is not authorized.

If you are nr~t the intended recipient, be advised ftiat any dCsctosure, copying, distribution or use of khis email, its

con#enks or any attachments is prohibited: `:. Any wrongful lnterceptiort Qf thls message is punishable as a federal

crime.

~'

,,

$/16/2013

MCCCD/Martinez 04006

Case 2:15-cv-01759-NVW Document 73-5 Filed 03/03/17 Page 70 of 178
Case 2.15-cv-01759-NVW Document 14-3 Filed 11/04/15 Page 3 of 3

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MCCCD/Martinez 04007

Case 2:15-cv-01759-NVW Document 73-5 Filed 03/03/17 Page 71 of 178
Case 2:15-cv-01759-NVW Document 73-5 Filed 03/03/17 Page 72 of 178
r~i~r•c~R~ ~,~-~E Ut~v~r~vr~rG ~o~~ or TF~E

MARTCOPA COiJNTY COMMUNI'~I'Y COLLEGE DCSTRIC'Y'

~~IARICU~'A COUNTY COMMUNII~Y )

COLLEGE llrSTRICT, )

v. )

Ur. Cleopatria Martinez, )

HEARING COMMITTEE

PRELIMINARY SCH~T~ULYNG ORDER

The Flearing Committee, on October 14, 2013 (through its Chairman Dr, Keith Crudup),

convened a preliminary scheduling conference of the parties in the above referenced

matter. Attendees included nr. Anna Solley (MCCC,D Representative), Pavneet Uppal, Esn.

(representing MCCCD), Stephen Montoya, ~sq. (representing Dr. Cleopatria Martinez) and

~t~nest Calderon (counsel to the Hearing Committee).

aozazs

Subject to both parties' counsel securing their witness availabilities, it is ORDERED:

The Martinez hearing shall be held its Executive Session. Adoption of the

Findings of Fact, Conclusions of I,aw and Recor~inendation will be held in public

session.

2, Both parties briefly outlined the Chemes of their cases. MCCCD legal counsel

objected to Mr. Montoya's statements as "argument." No substantive ruling was

made based on the thematic discussions. Therefore, the Hearing Committee need

not rule nn MCCCD's objections.

3. Position briefs to i►iclude attached exhibits, list of witnesses to testify (with the

subject matter of them• testimony also listed), foundational issues and relevance to

the performance standard at issue and other matters deemed important by the

parties' counsel to be presented shall he filed with the Hearing Committee on

Friday, November 1, 2013. The documents are to be transmitted via email to the

Hearing Committee in care of Ernest Calderon, ecalderon(~rhlfin-n,com and four

hard copies are to be delivered to Mr. Calderon as we11. Each party is to share the

same information with opposing counsel.

-1-

MCCCD/Martinez 01184

Case 2:15-cv-01759-NVW Document 73-5 Filed 03/03/17 Page 73 of 178
ao2a2s

F j~~;Si)C7II~l:S U r~"tc7 ~GSI"IIUIl ~i11C.IS, 11~J~CC(.IU.fi5 Ilf 'vVlC11F;;~~,1;' ~1i3(:~ ~',\%1({l..i:t~,c, 3~1,:~~1 ~l~)

exclta~ifcc~ <~nci (~ile;r,~ ~~~vi.tf~ il~~e ~u;~a~~irr~; (='.r~r,~~~r~x~i~tte~: o~~ ~'rici~~~-; ~T~[~~~v~:,n~h~;~r t3.,

1.,01.3 ~"h~> saril~;; ~ri.~l~s {~t~ 1'ilir~}, ~~i~~~7 t1~e, t~~~;~~tritl~ t'c~n~~r~nil~~:~i~ t3s listet.~ s.t~,r,.ati,~ sl~ra~l

a~a~~iy.

'~. "l,~-~e i~e~rin~ d~u-~~t?or~ is ~ex;~~ativel.v ;~~:~t .(t~t~ r~~~ie ~laj~. 1Vi~~'CC~;i:)'s t.ounsel ~xe;r~ci~e~.i

I~iis ri~17t to i~csex~ve Cl~<~ pos~~ t~ility of tlx : he~.rit1~; going i:c; iwc~ rl~.ys. T;~r. Martinez"

ct~Ltr~i~el r7~~leci 1.h~.~t the rear n~ rt~i~,ht ~:> . lirxlitecl t~o one. day ~7y r~.t1E~~.

f~. ~['he 1~-Ica.rir~~ C'~~.mmit2e.F; r.lc~~t~rrn~ir~~;r.~ CkiaC t~ot.k~ p~ri~ies will leave {:~;gtial tirrl~~ t~~>

~r~ser~t their cases,.

7. 'i'he hearing is s~:~ for Novei~~ber ~~th. Cc~i.insel ai~P to notify thy; 1~Iea;~it~

~'~n~~Yiitd~;~ vii ri~nest ~:~alcler6n a~itn,ess availability as soo~~i as ~ossiblu.

8. r~71c l~earin~ shall. be laelc~ ~t the Maric;o}7a, Coi~ni:y C~aml~~unity College I7ist.riet

off'zces as a neutral site.

9. 1'o;;t-hea~~in~ tr~emoran~a, briefs ar~d Pa~oposecl l~inet~ingy oI' Fact &, ~Cozielusior~s ol~

I.,aw sli.al] be fii.ed with the i-Tearing C~ommittec>, in the :matter nateci above, no

later than any; week af1;e~~ the he~x~ing. Tet~tativ~ly, Novernbs;r 2S, 2013.

10. Tl~e I Ieariza~ C;or~ar~ittee sk1a11 render it,5 Findings of Fact, C'onclusior~s of LLaw and

Recommei~clation no later than December ~), 2013.

~t is order~;d s~, at Mesa, Arizotla, t(~iis 16th day of Octot~er, 201.3.

w f ~ f

Dr. Keith Cry~`dtrp ^

Chairperson

Un Behalt.'o#'the C-Iearrrlg Gon~mittee

'4'

MCCCD/Martinez 01185

Case 2:15-cv-01759-NVW Document 73-5 Filed 03/03/17 Page 74 of 178
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Stephen Montoya (#011791)

Montoya, Jimenez &Pastor, P.A.

3200 Noah Central Avenue, Suite 2550

Phoenix, Arizona 85012

602-256-6718 (telephone)

602-256-6Fi67 (fax)

stephen@montoyalawgroup.com

Attorney for Cleopatria Mar~in~z

BEFORE THE GOVERNING BOARD OF THE

MARICOPA COUNTY COiVIMUNITY COLLEGE DISTRICT

Maricopa County Community College

District, CLEOPATRIA MARTINETS

POSITION STATEMENT

v.

(Hearing scheduled for November 18,

Cleopatria Martinez 2013 afi 9:00 a.m.)

Pursuant to the Hearing Committee's Preliminary Scheduling. Qrder of

October 76, 2x13, Professor Cleopatria Martinez submits the following Position 'I

Statement.

1. The Administration's attempt to terminate Professor Martinez is

invalid because the Administration has no# complied with the

Time requirements set forfih in the Residential Faculty Policies.

The Residential Faculty Policies (the "RFP") set forth stricfi, specific rules ~

governing the time limitafiions for Appeals from Recommendations of Termination. ~

Those deadlines were set forth expressly in this case in District General Couns~! ~

L.ee Comb's email to t}~e members of the Hearing Committee of September 11, ~

2013. See attached Exhibit A.

Because none of those deadlines were met, the Hearing Committee cannot ~

proceed, and the District must vacate the Statement of Charges of August 9, ~

MCCCD/Martinez I3198

Case 2:15-cv-01759-NVW Document 73-5 Filed 03/03/17 Page 76 of 178
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2013 against Professor Martinez as a matter of faw in accordance with the RFP.

2. Professor 1Viartinez did not violafie any copyright laws.

The Administration is attempting to terminate Professor Martinez from her

position as a Mathematics Professor at Phoenix College after twenty-eight years

of distinguished service to the District {including four years of service as the Chair

of the Mathematics Department at Phoenix College) based on its erroneous belief

tha# Professor Martinez has violated the federal copyright laws.

first, Professor Martinez did not violate the copyright laws. One of the

foremost legal experts in the area of copyright Iaw in Arizona, Mr. Fredric

Bellamy, a 1986 graduate of Harvard L.aw School with almosfi three decades of

experience in intellectual praper~y law, has rendered a written opinion

conclusively demonstrating that Professor Martinez did not violate the federal

copyright laws in any way.

Second--as evidence of her good faith—Professor Martinez repeatedly

asked the Administration for guidance regarding complying wifih the federal

copyright laws and the Administration's related directives. In response to

Professor Martinez's repeated requests, the Administration either provided

Professor Martinez with inaccurate guidance or with no guidance at all.

Third, fihe Administration has attempted to punish Professor Martinez for

using mathematic materials that other mathematics professors routinely employ

throughout the District. This demonstrates that the Adminisfirafion°s treatment of ~

Professor Martinez has been both arbitrary and capricious. It has also been rude ~

and disrespectful.

-2- MCCCD/Martinez 03199

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Fourth, all of the District's allegations regarding Professor Martinet's

alleged copyright violations arose during the 2010 year. Professor Martinez has

complied with the Administration's instructions regarding copyright issues since

that time. Based on Professor Martinet's twenty-eight years of dedicated service

to the District—and fhe inherently confusing nature of federal copyright law, which

even the District's own lawyers do not understand—the Administration's proposed

punishment of termination is too harsh in light of the underlying offense.

3. Professor MarEinez did not violate fihe District's rules governing

unauthorized compensation.

In the fall semester of 2012, Professor Martinez decided that she could

best teach her students using course materials other than a published textbook.

This is a common practice throughout academia in general and the District in

particular. Professor Martinez offered fo allow each student to make a copy of the

materials at the student's expense. Because this promised to be an inefficient

and laborious process, Professor Martinez offered to copy the materials for her

students and each student could subsequently reimburse her for her out-ofpocket copying costs.

Professor Martinez took the materials and had them copied at a nearby

"Staples" office supply store. Each student subsequently reimbursed Professor

Martinez for his or her share of the copying costs. Professor Martinez did not

make ~ profit from the copies. To the contrary, once again, Professor Martinez

simply asked the students to reimburse her for the actual cost of copying

approximately sixty copies of her course materials. She did not charge for her

-3- MCCCD/Martinez

Case 2:15-cv-01759-NVW Document 73-5 Filed 03/03/17 Page 78 of 178
EXHIBIT A

MCCCD/Martinez 03201

Case 2:15-cv-01759-NVW Document 73-5 Filed 03/03/17 Page 79 of 178
Page 1 of 4

Steve Montoya

From: Lee Combs (lee.combs@domaif.maricopa.eduJ

SenE: Wednesday, September 11, 2413 9:45 AM

To: Nora Reyes; Ernest Escobedo;'Keith Crudup

Cc: Steve Montoya; Diana Davidson; Uppai, Pavneet

Subject: Re: Termination Appea! Hearing Commiftee

Members of tlae Heaving Committee,

'Thank you very much for accepting this xole. As you znay la~ow, I am the chief in-house legal counsel to

the District. Since Dx. Martinez requested a hearing concerning the recommendation to terminate hex

employment, I have attempted to facilitate the farznatior~ of the hearing comanittee. However, I will not

serve as the comz~aittee's attorney. Should tha Heaxing Committee need legal. advice and assistance, an

independent atton~ey will be retained by the district to pxovide it. Legal counsel for the Committee can

help the cozx~mittee ass~.ire compliance with legal standards for this type of decision, as well as questions

of procedure aid evidence. Pease let Ms. Diana Davidson (480-731-8878) know and she will zssue a

purchase order.

As facilitator, I do have some basic infoz7mation to share with you, so that you can get started with your

initial set of decisions Then, X will step aside and communicate no fiu•ther with you concerning.~.is

matter.

Tlae next steps in the hearing procedure are described in the Residential Faculty Policies as fellows:

,•3. l 5.5.

The Heaxing Canuniliee shall select a Chair. Unless the parties stipulate to extend the time beyond that

which is set forth below, the Chair shall conduct a meeting with the attorney representing tkie MCCCD

and tkze Faculty tnernber atxd/or his/her attorney/representative no later than twenty. (20) business days

after the :formation of ~e committee for the purpose of exchanging exhibits, witness lists, and

sur~~rnaries of witness testimony. The Chair tzaay choose to deny admission of an e~ibit(s} or wii~ess

testimony far failure to corn~ply with this Section.

3.15.6.

Unless the parties otherwise agree, khe Hearing Committee shall conduct the hearing na later than ten

(10) business dais after the exchange o~ informationi detailed in Section 3.15.5. Prior to the hearing, the .

Faculty rneinbex must declare, in writing, whether he/she wishes the hearing to be public or in execYrtive

session. Tlie member may attend the hearing; present any testimony, evidence, or statements, oral or

written, in his/her behalf; and be represented by legal counsel ox other representative. It is expressly

understood the act of testifying will not be subject to reprisal by the MCCCD.

3.1.5.7.

Within five (5) business days after con~.pletion of the heaxing, the Hearing Go~unittee shad provide the

Chancellor and the Faculty member with a summary of tl~.e evidence that vcras presented during the

hearing In addition, the Dearing Committee shall render binding written findings of fact and conclusions

of law and forward these along with its recommendation regarding dismissal to ~e Chancellor. The

above deadline may be extended up to fifteen (15) business days after completion of the hearing, if the

i 1/1/2413 MCCCD/Martinez 032021 ,

Case 2:15-cv-01759-NVW Document 73-5 Filed 03/03/17 Page 80 of 178
Page 2 of 4

Hearing Committee requests briefs and/or recommended findings of fact and conclusions of la~xr ~xozx~.

the parties."

Conference rooms at the distrzct office are available fox the pxe-hearing meeting and tlae hearing itself.

Please contact Diana Davidson (4$0-731-8877) tp schedule the facility if that is Maur choice. The

procedure does not xestrict the committee as to the location of the hearing. Howevex, the legal

department retains a court reporter to transcribe the hearing, so Ms. Davidson will need to know ~,vhere it

wi11 be held if you choose an. alternate location.

Dr. Martinez is entitled to have legal. counsel represent her in this matter, and she has retained Mr.

Stephen Montoya for that purpose. The College and District adn~znistratzon will be represented by Mr.

Pavneet Uppal.

Please confer amozag yourselves and select a chair as soon as possible: The committee was fonn~d on

September 3, 2013, and by nny count the deadline for the information exchaxage meeting with the chair

(see section 3.7 5.5 above) is Tuesday, October 1, 2013. The hearing is required to follow within 10 days

of that meeting. Of couxse, al.l deadlines can be changed by agreement of the parties.

I will offex some general i~.formation about these hearings for those who are not familiar witk~ the

process and the cot~axnittee's role in zt. This information is intended to be descxiptive of how heaxings

generally proceed and how common issues have been addressed. I hope you find it usefial, for example,

in deciding to ash the district to appoint legal counsel to advise you. It is not intended as legal advice, or

direction to you in this case. The parties are flee to question or challenge any of these points, and the

committee zs entitled to rely on the eozafidentaal advice of ii~d~pendent counsel retained for it liy.tlae

district zn responding to such objections and deciding haw it will operate.

The hearing committee serves an important role ui tl~e termination process. Committee membexs ha~re

.responsibilities similar to a jtuy or a judge, and this role requires. a similar degree of impartiality, In the

past, meza~bers have been challenged and resigned after they appeared to act on behalf of a party, or

assumed the role o~ ~tdvacate or investigator before ox during the hearizzg. To assure fair considexation of

the matter az~.d avoid controversy, members generally avoid contact with the parties, their counsel, or any

witness wl~ile this matter is pending except as provided ix~ the above policy. Hearing committee

members strive to set and preconceptions they may have aside, maintain independence from the parties,

and keep an open mind on the issues until they have heard, seers, and considered all the evidence.

Administrative hearings are informal: the formal rules of evidence and civil procedure axa not strictly

applied. Evidence is typically admitted unless it is clearly irrelevant (i.e. does not tend to prove ar

disprove any fact related to the issues to be decided), unreliable (e.g. anonymous or unattributed

statements), or not disclosed in the pie-hearing meeting. To the extent that such questions do arise, the

chair normally responds on the committee's behalf. Committee legal counsel advises, but the chair

decides.

Generaify speaking, the party presenting a witness has npt been allowed to ask'yes or no" questions except on preliminary mattars (i.e. "leading

questions'. The party cross examining a witness for the other side ,~ ask "yes or no" questions. Exceptions have been granted only when

witnesses presented by one parry are demonstrably aligned with the other (i.e. "hostile" witnesses).

Comm.ztEees {like courts) have expected the parties to stipulate to the authenticity (not the relevance or

probatav~ value) of any documents they intend to offer in evidence uzz).ess there is serious dispute an that

point. In general, they have fotuzd. it helpfitl to ask t ie parties to submit to the chair (at the information

exchange) pre-hearing statements with attached exhibits. Such sfiatements set forth the facts the party

intends to prove, their relationship to specific documents and witness testimony the party intends to

present, and their relevazzce to the perfoz~mance standard at issue. This is not requixed by the policy, bust

11/1/2Q13 

MCCCD/Martinez 03203

Case 2:15-cv-01759-NVW Document 73-5 Filed 03/03/17 Page 81 of 178
Page 3 of 4

it cats save a gxeat deal of time at the hearing stage and avoid confusion.

Tlae policy does allow you to request that the parties submit post hearing brief`s andlor proposed :C~ndings

and conclusions, and allows for extension of deadlines for that purpose. (section 315.7.)

Ghaics have found that setting and maintaining a standard of dignity and respect for participants goes a long way to assuring a fair hearing and effective use of everyone's lime.

At the hearing, the administration bears the burden to prove by a preponderance of the evidence (i.e. rnore likely

than not) that the facts alleged in support of the disciplinary action recommended are true. The administration also

bears the burden fo persuade you that the fads support a finding that the employee violated the performance

standard at issue.

Committees hear and see evidence in different forms and of different kinds. What significance or weight to give it us up to fhe committee. Committees have considered buf not required direct evidence (e.g. the observations of an eyewitness) to prove facts: they commonly draw reasonable factual inferences from other facts and circumstances. (e.g. If the sidewalk is dry when we go to sleep and covered wifh snow when

we wake up, we can safely infer there was precip(tation during the night even though you didn't directly soo, hear, or feel it failing.)

When facts are disputed, committees have employed their own common sense -just as jurors do at the

conclusion of a trial - to evaluate the evidence in its totality and determine what the commikfee believes is true. Sometimes in sorting out the facts the decision will come dawn to a question of credibility. Who does the

committee believe? Committees have considered factors such as consisfiency, responsiveness, and corroboration

to make #his determination. Counsel for the parties may calf your attention to other credibility factors as well. Legal

counsel for the comi~nittee can be helpful in your deliberations. However, it has been the committees that

ultimately decided these issues, after hearing all the evidence and arguments.

After fihe hearing, as soon as possible commiftees generally meet to discuss what they have

heard'and, if possible,'farm a consensus as to what they believe has been proved and what

(heir recommendations will be. If a consensus is irnpossibl~, the majority has cletermined'the

outcome in same cases. The comrniftee's attorney can be especially helpful

here, providing legal context for the committee's deliberations, assessing independenfily the

legal arguments of fhe parties, and helping to articulate the conclusions of law that the

committee must provide to the Chancellor. At your direction, based an your findings and

conclusions, counsel may prepare a draft report summarizing the evidence, making findings of

fact and conclusions of law, and documenting your recommendation to the chancellor as the

procedure requires

At this paint, 1 will step aside. After you select a chair, please let Ms. Davidson know the identity of the chair you

choose, and if you would like to have the disfirict retain independent legal counsel to advise and assist the

committee. She is available to assist with scheduling meeting and hearing dates, reserving rooms, and

contracting for at#orney and court reporter services. 480-731-8877 is her telephone. Her e-mat! address is

included in the header to this e-mail.

Again, thank you for your service.

~~! MarlCopB 

Community L,ea Combs: General Counsel

Colleges. The

college of you. 2411 West 14th Street, Tempe AZ 85281

phone ~ 480-731-B87$ • fax ~ 480-731-8890

email ~ Iee.combsCDdo~paii,marlcona•edu

On Wed, Sep 4, 2013 at 7:02 PM, Patty F'inkenstadt <patricia.~nkenstadt~phoenixcollege.edu> wrote:

4 Colleagues,

MCCCD/Martinez 03204 11/l./2013

Case 2:15-cv-01759-NVW Document 73-5 Filed 03/03/17 Page 82 of 178
Page 4 of 4

', This will certify that as of the close of bus(ness Monday, the following individuals were designated as members of the hearing committee concerning a rocommendation to terminate Dr. Cleopatria Martinez:

Dr. Ernesto Escobedo

Dr. Keith Crudup

Dr. Nora Reyes

t have confirmed that they are available to serve, and therefore pursuant to the RFP, I horeby certify that the hearing committee has been duly formed

f understand that the committee's next step is to designate a chair, who will have some procedural responsibilities. Legal counsel £or the committee will advise thQ group on next steps after a chair is designated.

Thanks to the membors of the committee for their service in Phis important process.

Members, as soon as possible please confer among yourselves, select a chair, and let the other addressees above know your selection.

Thank you,

Patricia Finkenstadt

Faculty Association President

Patricia Finkenstadt, Ph.D,

8losciences Faculty and Faculty Association President

1202 W Thomas Rged, Phoenix, AZ 85013

phone 16,Q2 285.7~Q$ • fax. b02.285J349

ema11 ~ p~ !r cia•fSp,(~ensta t,~ohoen{X~ollege.ec~y

websile ~ ww~hoenixcoileae.edu

11/x/2013 MCCCD/Martinez 03205

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Case 2:15-cv-01759-NVW Document 73-5 Filed 03/03/17 Page 84 of 178
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Stephen Montoya (#011791)

Montoya, Jimenez &Pastor, P.A.

3200 North Central Avenue, Suite 2550

Phoenix, Arizona 85012

602-256-6718 (telephone)

602-256-6667 (fax)

stephen@montoyalawgroup.com

Attorney for Cleopatria Martinez

BEFORE THE GOVERNING BOARD OF THE

MARICOPA COUNTY COMMUNITY COLLEGE DISTRICT

Maricopa County Community College

District,

v.

Cleopatria Martinez

CLEOPATRIA MARTINETS

SUPPLEMENTAL POSITION

STATEMENT

Hearing scheduled for November 18,

013 at 9:00 a.m.)

Pursuant to the Hearing Committee's Order of November 8, 2013,

Professor Cleopatria Martinez submits the following Supplemental Position

Statement.

1. Professor Martinez did not violate any copyright laws.

The Administration is attempting to terminate Professor Martinez from her

position as a Mathematics Professor at Phoenix College after twenty-eight years

of distinguished service to the District (including three years of service as the

Chair of the Mathematics Department at Phoenix College) based on its erroneous

belief that Professor Martinez has violated the federal copyright laws.

First, Professor Martinez did not violate the copyright laws. One of the

foremost legal experts in the area of copyright law in Arizona, Mr. Fredric

Bellamy, a 1986 graduate of Harvard Law School with almost three decades of

MCCCll/Martinez 03207

Case 2:15-cv-01759-NVW Document 73-5 Filed 03/03/17 Page 85 of 178
1 experience in intellectual property law, has rendered a written opinion

2 conclusively demonstrating that Professor Martinez did not violate the federal

3

copyright laws in any way. Indeed, as Mr. Bellamy demonstrates, mathematical

4

5 formulas are not even subject to copyright protection and any use of those

6 formulas by Professor Martinez was covered by the "fair use" doctrine in any

~ event. See attached Exhibits 18 and 19. Reflecting Mr. Bellamy's conclusions,

8

no author or publisher has ever accused Professor Martinez of violating any

9

10 copyright. The Administration's claim that Professor Martinez had violated

11 copyright is nonsense.

12 Second—as evidence of her good faith—Professor Martinez repeatedly

13

asked the Administration for guidance regarding complying with the federal

14

15 copyright laws and the Administration's related directives. In response to

16 Professor Martinez's repeated requests, the Administration either provided

1 ~ Professor Martinez with inaccurate guidance or with no guidance at all. See

18

attached Exhibits 22, 25, 35, 36, 40, 44, 47, 53, and 56. In addition, Professor

19

20 

Martinez has consistently sought and obtained written permission from both

21 colleagues and publishers to use their materials. See attached Exhibits 22 and

22 31.

23

Third, the Administration has attempted to punish Professor Martinez for

24

using mathematic materials that other mathematics professors routinely employ

25

26 throughout the District. This demonstrates that the Administration's treatment of

27 Professor Martinez has been both arbitrary and capricious. It has also been rude

28

and disrespectful.

-2- MCCCD/Martinez 03208

Case 2:15-cv-01759-NVW Document 73-5 Filed 03/03/17 Page 86 of 178
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Fourth, all of the District's allegations regarding Professor Martinez's

alleged copyright violations arose during the 2010 year. Professor Martinez has

complied with the Administration's instructions regarding copyright issues since

that time. Based on Professor Martinez's twenty-eight years of dedicated service

to the District—and the inherently confusing nature of federal copyright law, which

even the District's own lawyers do not understand—the Administration's proposed

punishment of termination is too harsh in light of the underlying offense.

2. Professor Martinez did not violate the District's rules governing

unauthorized compensation.

In the Fall semester of 2012, Professor Martinez decided that she could

best teach her students using course materials other than a published textbook.

This is a common practice throughout academia in general and the District in

particular. Professor Martinez offered to allow each student to make a copy of the

materials at the student's expense. Because this promised to be an inefficient

and laborious process, Professor Martinez offered to copy the materials for her

students and each student could subsequently reimburse her for her out-ofpocket copying costs.

Professor Martinez took the materials and had them copied at a nearby

"Staples" office supply store. See attached Exhibit 21. Each student

subsequently reimbursed Professor Martinez for his or her share of the copying

costs. Professor Martinez did not make ~ profit from the copies. To the

contrary, she actually lost money making the copies!

Once again, Professor Martinez only asked the students to reimburse her

-3- MCCCD/Martinez

Case 2:15-cv-01759-NVW Document 73-5 Filed 03/03/17 Page 87 of 178
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for the actual cost of copying approximately sixty copies of her course materials.

She did not charge for her time or travel expenses in reference to making the

copies. In fact, she even rounded out her costs to the lowest round dollar and

sought reimbursement only for that amount.

The Administration subsequently accused Professor Martinez of obtaining'

unauthorized "compensation" from her students in violation of District rules. The

Administration's allegation in this regard is false (and in fact silly) because

reimbursement for out-of-pocket expenses resulting in no profit does not

constitute "compensation" in violation of District rules.

Once again, when Professor Martinez asked for guidance from the

Administration, the District's General Counsel Lee Combs refused to help her.

See attached Exhibit 20.

Moreover, and in any event, the Administration's proposed sanction of

termination is not justified by the alleged underlying misconduct because the

alleged underlying misconduct is trivial at best and bogus at worst. Indeed, the

District's attempt to terminate Professor Martinez's employment based upon

these facts is evidence of either personal animosity or arbitrariness, not of any

good faith attempt to enforce the District's rules.

Respectfully submitted this 13t" day of November 2013.

MONTOYA, JIMENEZ &PASTOR, P.A.

s/ Stephen Montoya

Stephen Montoya

3200 North Central Avenue, Suite 2550

Phoenix, Arizona 85012

Attorney for Plaintiff

1VICCCD/Martinez 03210

Case 2:15-cv-01759-NVW Document 73-5 Filed 03/03/17 Page 88 of 178
1

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hereby certify that on November 13, 2013, the foregoing document was sent via

email to:

Ernest Calderon

Ridenour Hienton &Lewis, PLLC

201 North Central Avenue, Suite 3300

Phoenix, Arizona 85004

ecalderonCc~rhlfirm.com

Counsel to the Hearing Committee

. •

Pavneet Uppal

Fisher &Phillips, LLP

201 East Washington Street, Suite 1450

Phoenix, Arizona 85004

pu~palCa~laborlawyers.com

Attorney for Maricopa County

Community College District

s/ Stephen Montoya

-5- MCCCll/Martinez 03211

Case 2:15-cv-01759-NVW Document 73-5 Filed 03/03/17 Page 89 of 178
MCCCD/Martinez 03212

Case 2:15-cv-01759-NVW Document 73-5 Filed 03/03/17 Page 90 of 178
ST~PTOE &~OF-INSON«~

ATTORNEYS AT LA1W

Fredric D. Bel3amy

602.2575204

fbellamy~steptoe.com

December 16, 2010

Cleopatria Martinez, Ph.D.

7030 North 21 Sf Street

Phoenix, AZ 85010

Re: Review of Copyright Issues Relating to Class Lectuxe Notes

Dear Dr. Martinez:

Collier Gencer

20l East Washington Street

Suite 1600

Phoenix. AZ 85404-2382

TeE 62.2575200

Fax 602251.5299

steptoe.com

You requested that I review your lechue notes with respect to 'issues of potential copyright

infringement. In connection with doing so, I also reviewed your correspo~denee with the

publisher of the tea~tbook that you use these notes with, and specifically considered whether they = _.

fall within the scope of your publisher's permission or as fair use under U.S. copyright law, or --

both. The materials you sent me include your Springy 2010 lecfuxe notes for MAT~82

Trigonometry, as well as the pages from thc: required textbook that contain sinnilar math

pxoblems and that discuss the subjects on which you lectured. You also included a copy of

correspondence you received from Ronnie Elliott discussing certain issues relating to copyright

permission.

In reviewing these materials, I note that my practice as a lawyer has included copyri~l~t

infringement actions since T began practicing law in Arizona (and in federal court in the Northern

District of California). After graduating from Harvard Law School in 1986, T have spent a

substantial portion of my legal practice over almost 2S years represeixting clienEs in copyright,

trademark, unfair competition and other intellcctuai property matters. T have been zecognized in a

publication (based on apeer-review methodology) as a "Southwest Superlawyer" in the veld of

Intellectual Property Litigation, and I have frequently counseled clients on copyright and other

intellectual property-related issues. I have also spoken many times at continuing legal education

programs for bar and other organizations, including the Phoenix City A.ttorney's office, on

copyright and related legal areas.

Based on the materials I xeviewed, it is my conclusion that your Iectuxe notes fall clearly within

the scope of the fair use doctrine in copyright Iaw. My conclusion is based on the following

factors:

Doc. #509912 v.1

WASHINGTON NEW YORK CFIICAGO PHOENIX !OS ANGElLS CENTURY CITY LONDON 6RUSSELS BEIJING

MCCCD/Martinez 03213

Case 2:15-cv-01759-NVW Document 73-5 Filed 03/03/17 Page 91 of 178
Ivls. Cleopatria Martinez

December 16, 2010

Page 2 of 2

STEPTOE &~OHNSON41.~

1. The piupose and character of your lecture notes are not for any conunercxal

plupose and are purely for nonprofit educational purposes. Indeed, in my view your lecture notes

are the quizitessentia.I educational-purpose types of materials that fall squarely within the core of

the fair use defense's ambit and reason for existence. It is in the nature of a required te~book to

be used as a source maternal for a professor's lectures.

2. The niture of the copyrighted work is that of a textbook on mathematics, which

implies and anticipates the type of uses reflected in your lecture notes. It is in the implicit nature

of such a textbook containing mathematical problems or exercises that the enrolled students may

be asked to develop, practice and demonstrate their knowledge and understanding of the

textbook's lessons by performing additional exercises similar in nature to those presented in the

textbook. In my review of the problems set Earth in your lecture notes, it appears that they are

based on sunilar naathernaticai principles with changes in the numerical or other pertinent

parameters designed to assist students in the learning of the textbook's Iessons as used aand taught

by you as the course instructor and professor.

3. The amount and substantiality of the portzon of the copyrigh#ed materials used in

relation to the textbook as a whole is reasonable in li~-it of the notes' supplementary nature to

your lectures based on that book. The lectare notes appear to be intended to serve as a convenient

means for your students to pay attention to your lectures and to retain the inf'orznation, while

providing them with additional exercises based on the mathematical principles you are teactung

in the trigonometry course. T'he lecture notes do not appear to supplant the textbook, but rather to

supplement it. The use of materials appears to be limited to that purpose and context,

4. There does not appear to be any adverse effect on the potential market for the

textbook based an the lecture notes, as the students are required to purchase the textbook :For the

course. The absence o:~ any such effect on the marke# is consistez~.t with the fact that the publisher

has granted tau permission to use the materials in the precise manner in which you used them.

Therefore, all of these factors support the conclusion that your lecture notes clearly fall witizin

the fair use doctrine under U.S. copyright law under the circumstances. I am not aware of any

factox that militates in favor of a contrary conclusion, and do not see a reasonable basis in this

situation for undue concern about potential. copyright infringement. Please Iet me know if you

have any questions.

t i ~i'1

Sincerely,

f:Z. ~~

t~

.Fredric D. Bellamy

Doc. #609912 v.7

MCCCD/Martino 03214

Case 2:15-cv-01759-NVW Document 73-5 Filed 03/03/17 Page 92 of 178
EXHIBIT 19

MCCCD/Martinez 03215

Case 2:15-cv-01759-NVW Document 73-5 Filed 03/03/17 Page 93 of 178
~LE~ LC

AttUrlte~y,S

Fredric D. Bellamy

Shareholder

One North Central Avenue

Suite 1200

Phoenix, AZ 85004-4417

fbellamy@rcalaw.com

P (602) 440-4835

F (602) 257-6935

Following his graduation from Harvard Law School in 1986 and Harvard University in 1983,

Fredric Bellamy began practicing law, accruing 25 years of experience in civil litigation and

alternative dispute resoluEion, focusing on complex "bet-the-company" high-stakes cases

relating to many of the most difficult issues facing businesses in the West. His experience

includes litigation on behalf of major financial institutions and banks, including lender

liability, financial, securities fraud and racketeering matters, international mining

companies, major retailers and manufacturers, and technology companies.

Experience with financial institutions includes:

Representing one of the country's largest banks in fraud litigation in Tucson

involving the financing of nuclear power plants in the West, in a case that involved

over $2.2 billion in alleged damages -- a case 'that settled on favorable terms after

fhe first month of a jury trial.

v Representing local banks in defending against highly charged lender liability suits,

resulting in favorable rulings after the filing oP summary judgment motions.

Representing a major savings and loan in financial fraud litigation involving the

financing of amaster-planned community in Arizona, defending against a large

Japanese real estaEe company -- a case that settled on highly favorable terms

after Fredric filed a comprehensive motion for summary judgment following

dozens of depositions and extensive document discovery.

Fredric's substantial experience in all phases of complex IitigaEion has frequently led to his

representation of clients in cases involving highly technical issues, including issues relating

to finance, economics and accounting, as well as a broad range of scientific and

engineering issues. Recognizing Fred's breadth and depth of experience in dealing wi#h a

variety of difficult technical disputes, Fred has been named in Best Lawyers in America0

(2008-2012), in Southwest Superlawyers (2007-2010), and in Chambers USA (2007-201p}.

Chambers USA (2007} noted that Fredric's "litigation practice has seen him involved in

some very sizeable cases. He is widely perceived as a 'substantive lawyer' with a quick

grasp of scientific issues and a creative approach." Fredric's experience with highly

technical cases includes:

Representing the country's largest copper mining company in toxic tort and

environmental litigation in a complex, multiple-party series of cases that lasted

nearly two decades, including two interlocutory appeals and defense against a

class action, with a settlement achieved as the case was being prepared for trial.

Representing a majorjet plane manufacturer in environmental litigation focusing

mostly on complex issues relating to corporate successorship, achieving a highly

favorable settlement after filing a successful motion for summary judgment

following years of discovery.

m Representing one of Arizona's largest cities in a complex case involving issues

relating to the construction and maintenance of a landfill, resulting in a highly

favorable setElement before trial, following the filing of several diapositive motions.

Fredric's experience includes class actions, multi-district (MDL) litigation, 2nd other

complex cases, and he has extensive experience with e-discovery and document discovery

issues that are critical in complex and especially high-stakes litigation.

~, ~ 3

~~ 

- ~~.

i ti`~ i 

~y~ }

lY~ ~ 4

„i!~si~ ~

OFFICES

Phoenix, AZ

SOWTIpiVS

Intellectual Property

Litigation

Lender Liability Defense Group

Water, Energy, Resources and

Environmental L.aw

Water

Environment

Natural Resources

EDUCATION

Harvard Law School J.D., 1986

Harvard University B.A., 1983,

cum laude

ADMISSIONS

Arizona 1986

US Supreme Court

US Court of Appeals, Ninth

Circuit

MCCCD/M~rtiner 03216

Case 2:15-cv-01759-NVW Document 73-5 Filed 03/03/17 Page 94 of 178
In 20Q7, Fredric received the prestigious Burton Award for Distinguished Legal Achievement at the Library of Congress, an award

that recognizes 30 entries (out of 1,000 entries submitted by the nation's leading law firms each year) for excellence in legal writing

in plain English. Fredric's writings have included chapters on electronic data security and data breaches in the Intellectual Property

Deskbook for Business Lawyers, published by the American Bar Association, as well numerous other publications.

He is recognized by Best Lawyers, Super Lawyers, and Chambers USA.

E "p.E6Ri~ 13,.`4,1-t~L ,I~tiY

r~rr-~~ i r Tc~~~ r~~tkect

j .

E tT:. 42 1'. T..R iG .tit lSt ~t 1. :~. ~. ~1:

.. ~'

MEMBERSHIPS

dormer Chairman, State t3ar of Arizona Intellectual Property Section

a Former Chairman, State Bar of Arizona E-Commerce, Internet &Technology Law Section -

Founding Chairman, Technology Committee, Executive Council, State Bar of Arizona Young Lawyers Division

NEWS

m Monday, August 19, 2013 Best Lawyers Recognizes Ryley Oarlock for 2014

o Wednesday, June 19, 2013 Ryley Cariock Attorneys Selected As Leaders by Chambers USA

Thursday, July 12, 2012 Chambers LISA 2012 Details Client Praise for Ryley Oarlock Lawyers

Monday, September 12, 2011 Ryley Cerlock & Applewhite Achieves First-Tier Rankings in 2012 Best Lawyers in America

Monday, June 13, 2071 RGA Lawyers Selected as Leaders By Chambers USA

v Monday, January 24, 2011 Ryley Oarlock & Applewhite Adds Shareholder Fredric D. Bellamy from Steptoe &Johnson —

MCCCD/Martinez 03217

Case 2:15-cv-01759-NVW Document 73-5 Filed 03/03/17 Page 95 of 178
NICCCD/Martinez 03218

Case 2:15-cv-01759-NVW Document 73-5 Filed 03/03/17 Page 96 of 178
~*

that was easy.

Fabian Garcia

Certified Print Pro

Staples Copy &Print

Staples

106 W. Osbarn Rd

Phoenix, Az. 85093

Tel: 602-248-8122

Fax; 602-248-8006

cc0392@s#a pfescopycenter. com

www.stapies.com

COP`S HOLD TR~t~fS~GTION ~

i

IRAN NO.; 52857 REGISTER i~Q.: 005 '

DATE; 04/05/2013 •j

r 2 T T E tai C~~ ~ ~'9 ~I- . 8~ J

1575 1-100 8W LTR 5TD

713893 O.l00ea 157.50

25 14h1M SPIRALL -BIN

65909 4,.49~ea ~ 112.25

1636659 005 052857

0392 Q4/05/2013 01;48

II N11~~IIlil~illf ~~illli~fl Ill

0552857

Company Name; 0000

Name; 0000 0000

Phone Numbers Q00-000-0000

-Time Due; 7:ODa

r:

MCCCD/Martinez 03219

Case 2:15-cv-01759-NVW Document 73-5 Filed 03/03/17 Page 97 of 178
EXH I ~ IT 2~

MCCCD/Ma►•tinez 03220

Case 2:15-cv-01759-NVW Document 73-5 Filed 03/03/17 Page 98 of 178
4/11/93 Maricopa CommuniryCollege DistrktMail -Fwd; $11 Refund

iii A r'I I G {3 P' eL

~S7LL~~iF5" _ .,. ..

Fwd: $1 ~' Refund

Anna Solley <anngh24831@phoenixcollege.eduy 

To: "Judy.Castellanos@damail.maricopa.edu" Wed, Apr 3, 2073 at 3:b8 PM

<judy.castepanos@domail.maricopa.edu>

Cc: Casandra Kakar <Casandra.Kakar@phoenixcollege.edu>

Begin forwarded message:

From: Lee Combs ~lee.combs@domail.maricopa.edu>

Date: December 13, 2012 11:08:06 AM.PST

To: clEopatria.martinez a~phoenixcollege.edu

Subjecf: Re: $1'f Re#und

Reply-Ta: fee.combs@domai(.maricopa.edu

Dr. Martinez,

The Code of Professional Responsibility prohibits me from giving you advice on this rr~atter,

because you are in a legal pos#ure adverse to my client. Nor can anything I say supersede

President Solley's direction to you.

~n Thu, Dec T3, 2012 at 19:51 AM, Cleapatria Martinez <cieopatria.marCinez@

piioenixcollege.edu> wrate:

have a question abou# the $71 refund: I want to Knaw if I can request the booklet be returned fo

me in exchange for the $11 refund. Also, please send me a copy of the policy.

sThank you,

Cleopatria

On Tue, Dec 11, 2012 at 1;50 PM, Joe Sueyoshi <joe.sueyoshi@phoenixcollege.edu> wrote:

hart received a complaint from one of your former students concerning the $11 refund, As

per the correcti~ action and with consultation with District Legal, the student is to recei~: the

$~ 1 reimbEirsement. The student can provide a receipt, but returning the booklet is not a

condiEion of receiving the refund. ~Chis fiype of conflict is one of the reasons ~vhy there are District cash handling policies.

Failure to comply with students' requested refunds may be interpreted as insubordination.

suggest you proceed accord)ngly.

joe

f

Joe Sueyoshi

~ Phoenix College

~ Math Department Chair MCCCD/Martinez 03221

~ttpsJ/rroil.google.corr~mail/u/Ol?ui-2&ik=28e994did1&rie~ot&as frorr~snllaueaG +ti~~~~r„z~~ ~.~~-.-..~,~.,9-~ ..,.~__.__~~o__ ..~.~.... . ,~

Case 2:15-cv-01759-NVW Document 73-5 Filed 03/03/17 Page 99 of 178
nip ~v~ s Maricopa Community College District Marl -Fwd: $19 ReFund

602/285-7885

'~ Lee Combs: General Counsel

24'f 1 West 14th Sfre~t, Tempi AZ 85281

YJ.R~bflfS. ~,+;. ~: ,ti 480-731-8878 - .:: ~:: 480-731-8890

~~ `~~ `~ ' lee.combs@domaEl.maricopa.ec3u

.?_ ~_

MCCCD/M~rtincr 03222

httpsJ/mail.gcogle.corNmai!lu10/?ui=2&ilr28e994did1&tievwpi&as from=selley~s_to=judy~as_has=solfey&as subset-all&Gs_K~fFin=ld&search=adv&th=13::. 2/2

Case 2:15-cv-01759-NVW Document 73-5 Filed 03/03/17 Page 100 of 178
EXH ~ ~ IT 22

MCCCD/Martinez 03223

Case 2:15-cv-01759-NVW Document 73-5 Filed 03/03/17 Page 101 of 178
(2} Pe~~nission notneedec~to

z~eplrzce the textbook ~-ecc~mles with nz~u own examples

Subject: RC: Substitution ofzny problems

From: Estelle.Simpson@I'earson: com

Rafe: 8123!2010 3:13AM

To: cIeopatrza.marEinez@pcmait, maricopa.edu

Cleopatri.a,

Y'eyo axe enrrect ad may proceed with your request as stated below:

Kind Regards

Es~.elle

,~~----Original Message------ Prom:

cleopa~.ria.martinez

[main:a:cleopatria.martinez@pcmail.marjcopa.edu]

Send: Sa.turdap, Augx~sf 21, 20x0 1.43 AM

To: Simpson, Estelle

Subject: Substitution of my prob7.ems

'~S~e21e, a-20-10

• pn 8-7.7--10 T swnmarized my understanding- of ottr phone conversation. That

is, t.j-.at ~ did not need t:'1'e pub].zsxzer.'s permission to use (i;-, if,y lecc,-,.,;,re

otes whichlmaydiscrib-.,,:.re to st-...:.ders Cor them se in my precalc-...;.1s

class at PCj my own problems which are suai7.ar ~o the selected exa pies

in the adopted textbook by Su1l.ivan: lfhaven't'heard back from you.

G+Tould you JczndJ.y confa.rnt whether ■~ need permissa.on to do the above'?

Thank you, '

C1.eopatria -

from: cleopatria.maxtinez@p crttail.maricopa.edu

l~a.te, I3/17/2010 1:2Q PM

xo: Estelle.Cos~a@Pearstln.corn

> AS par our ~e.lephone conversatiozz last week, T wash to confirm

Agxeeznent that T could substitute i.n my lecture noL-es my own problems which

axe similar to the selecEed examples in the adopted textbook by Su].7.ivan,

PRF,CALCULUS: CONCEPTS ~'SIROUGH FOD7CTSOrIS, A RIGFIT TRI11t~TGLE APFR, copyright.:

2011 ?eaxso:r: Ed•c<cat:3.on, Tnc. Reprinted. by perrdsSion of ?earsoT: :C:d•„cac:ion,

T.nc. ~ Tt is wy undexs~anding I do not. zieed the publa.shex?s pex~ma.ssion in

Regards to usirxg the prok~].ems T have createfl for' my lecture noes 1<;-,ich T xz.ay

Da.stribute to students fox their Ilse i.n my MAT187 PrecalcuJ.us math class at

Phoenix Col].c:ge.

Thank you,

Cleopatria

}

:EEOC140 }yICCCD/M~►'tinez

Case 2:15-cv-01759-NVW Document 73-5 Filed 03/03/17 Page 102 of 178
31 I may use textbook examples in env lecture not~~s

SuUject: R~: Borrowing Tent ~,xampies for Lecture. Notes

I=rom: Estelle 5irripson

Date: 7 0/8/207 Q $:05AM FWD: j Abdo 2:0~1PM

~'o~ Cleopatria Martinez

Yes for as long as you are acloptuig the te~rt grid it is being purchased by tlae students

Best

~sCel2e Sirdpson

Pezxaissions Speci~ist

Pearson Education, Txzc.

501 Boylsfon Street, Suite 900

13aston, MA 02916

tilt esteHe.simpson@pearson.com

V 617-671-3~1-~5

617-672-3447

~`xo~n: cleopatxia.znartinez [mailto:cleopatria.martinez ~r pcmail.maricopa.eduJ

Sent: Friday,Ocfober 08, 201011:02 AM 8:01 AM

To: Simpson, Estelle

Subject:Borrowing TaxE Examples for Lecture IVbtes

Hi ~ste]Ie, 10-8-10

S hope all is going well for you.

7 axn us'vng the Sullivan. PRFCAI,CULUS: CONCEPTS THROUGH FUNCTIONS, f1. RIGHT

TRXANGLI; A1'PR, UO 201 l Pearson education, Inc. Re~ri;nted by permission o£S~earson

Education, Inc. St~xdez~ts are required to purchasafhis textbook and C use it to teach tote

class: ~.

M teach using Tecture notes ! maRe suYnxzzarizing tI~e .main points needed to, understatzd a

concept. May 1 every so often use.ex~unples fiorzx t(ze text in Yiay lecture notes? Ts it ok ifi~

dists~i~b~te ~Zese Tect-~zre notes ~,vlzich may contain exvnples frotrz the requu•ed textbook to

my students?.

Thax~cingyou in advance for a speedy response.

Cleopatria

Case 2:15-cv-01759-NVW Document 73-5 Filed 03/03/17 Page 103 of 178
4) I ma-v use textbool~ ~a~o~lem~s in env exancs

Subject: R~: Use of textbook questions ort tests

FCom: Estelle.Simpson~a,Pearson.covi

Date: ~ 0/] 9/2010 1:13PM

'Z'0: Cleopatria Mar4inez

Claopatria,

As long as the books you mention, Briggs 8c Sullivan, have actually baea~ adopted for your cottrs~/s

A.i~tU have been purchased by the students, you are free to vse the questions form the text's in auy

many that best sttxts your teacT~irag needs.

[ hape this 'helps. ~ .

Subject: RRE: Use of textbook questeans on tests

From: CTeopatria Martinez

Date: 1 Q/19/2010 I :06PM

To: Estelle. SipTpson(a~Peaxsoxz.com

Estelle, 10-19-10

I mast apologize for the clari:6ca~ion that T needed from you as a publishes. My immediate

supez~visor and the college aclministratioz~ have questioned this practice of using problems fxom

the Pxecalculus textbook izt tests.

You iridxcatec~ use of te;tt questions for tests vas Cne for the Brigs/Coc~urazt te:~t but it was not

specifically sfated that tJie same was txue for Sullivan's Precalculus text. ~ am sozry for tatting up

so' much of your time but zt is unpmtant that S male this specz~c inquizy.

Thank ~rou for your reply.

Subject: RE: Use ofte~tbook questions on tests

Pxom: Estelle. Siam sozz Pearson.com

Date: ~10/19/20I0 5:22.A.M

To: Cleopatria Marfinez

1 tt~ot~glit I'd aJxeady done that Cleopatria

Subject: RE: TJse ofte~book questions on tests

Fxozu: Clcopatria MarLiuez

Data: 10/19/201Q 1241 PM

To: Este]Ie.Simpson@Pearson.com

Hi Estelle, 10-X9-10 '

Would you r~~ri£y tPiat the same is tr-~xe regarding my use of questions from the Sullivan text (also

adopted and pureY~ased by students} in tests for the class?

Tliwks .

Subject: RE: Use ofte~tthook questions on tesis

~'rozn: Estelle.SimpsonLPearsou.com

Date: 10/19/20Xd 5::22 AM

To: Cleopatraa Martinez

Cleopaixxa,

You are dine to use your choice of questions from t1~e Briggs/Cochran teat as bong as the text has

l~eeit adoptecl~aud purchased by the students,

Best t5_ nEEOC142 MCCCD/Ma►•tinez

Case 2:15-cv-01759-NVW Document 73-5 Filed 03/03/17 Page 104 of 178
Siil~ject: Use ofte~:tbook questions oniests

Txo1n_ Cleopatria Martinez IO/I8%200

Date: 3 :17P1~1

To: Estelle.SimpsonnPearson. com

Bee Cleopai~~ia Martinez '

Hi Estelle, TO-18-10

X have~z't heaxd from yoi~ regarding my'use,oftextbook questioaas orz buy. erns. I h~.ve also

ldopted the Calculus textbook by Briggs/Coehmrz. I~am preparing a Calculus test. Pleasesend me

your response AS.A.P. I want to be cez~tain tJ~at z~ty use of questions from tke textbook on tests does

not regtiixe pert l Iission, and 1 do not need to credit the autTior when i use• tbase cYuestions on

a test sizice the book is adopted azzd studenfis axe regtured fo purchase it.

Thanks,

Cleopatria

Subject: CJse of textbook questions on tests

from: Cleopafria Martinez

Date: 10/13/2010 9:53AM

To:. ~stella.Sim~son c~l'earson.eoxn

Bee C7eopatria lV,(arlanez

~-Ti Estelle, 1Q-13-10

~ hope yon ara ~avinig a great day.

I adopted the Sullivan textbook, PIZECA.I,CLTI,US: CONCEPTS THROUGH ~TINCTIONS, A

.l2ICT-I'I"I'I2T~INGL~ 11PPR, OO 2011 Pearsozz ~dt~cation, ~zc: Repzinted by permission o~

Pearson Education, Inc. Students are zegiri~•ed. to purchase this fiextbook

I often use questions out of tha te:~tbook t`Ihen~I tivritc up my tests. 7.~o I need pern~ission to do ~ j

this, and da I steed to credit the al lthor when I use a question :fz'om fhe te.~cEbook its a test given to

t~1E S~LIC~EUfS~

Th~ulking you in advance for your response,

CXeopatria

V

i

EEOC~43 MCCCD/Martinez 032 7

r+'nanra~nr nooa

Case 2:15-cv-01759-NVW Document 73-5 Filed 03/03/17 Page 105 of 178
(1 J Pe~Ynission to copy selected Ho;newa~k .Pyobletn~s

Your Re:Eerence. Permission Request:

Div: OR: Code: 9'780131874763

Req No; 38634: Oust No: '(5205

Date:. Al'R 13 10 : Via ~'ax: 602-285-

7068

Cleopatz~ia Martinez

Phoenix College

1202 W. ~kzoxraas Rd.

Phoenix, PZ 85Q13.

is hereby.granted permission to use ~tze znateri~l indicated ~ the fo1]or~ring

ackrzo~cvledgeznent This acknowledgement must be cried on the cop~~t or

acknotivledgementspage ofyour book or as a ~Eootaote on ~Iie page o~i ~vl~ich i:he material

appears:

Sullivan,PRECALCULUS:CONCEPTS THROUGNfUNCT(ONS,A RIGHT TRIANGLEAPPR,~OO

2407. Rapxinted by~ez-mission gfPe~~rson Education, Znc.

Please note: lfthe material is to be sta~2ci~ .oz• bound, the ~reditline must appear on the

first, page on which oYrr materiaY appears. If not stapxed oz bound, tt~e credit line must

appear on each page of ow• material.

This material may only be ased in t7ie following manner:

To m~Sce up to 35 copzes of selected IIomewoxlc problems froze each section of Chapters 5,

6 and 7, pp. 37] ~-563 fox ~'rofessor Martinez end stixde~ts for the course MAT1$7-

PRECALCUt.US beginning Fa112010 at Phoenix College. ~erzn.ission is granPed free offee on

the understanding that the above te~book has been adopCed for the course and purchased

by the students.

This, permission is non-e~cluszve and applies solely to the following lang~~age(s) and

territory:

Language{s). - ~ngHsh Tezritory: k'hoenix College

-EEC3C1-36 - ~ ~ ~ MCCCD/Martinez 032 8

r^aa~rcnnr na~rr

Case 2:15-cv-01759-NVW Document 73-5 Filed 03/03/17 Page 106 of 178
rn~ox~~vr Norzc~:

Pearsar3. Education, Tnc. reserves the rigla~:to take any` appropxxate actioxa iFyou have used

our intellectual p~operiy in violation of any of the requirements set forth in this

pezxnissions letter. Such aeon may include, but is not limited to; the right to d errand that

you cease and desist in yo~u~ use of Peat~son Eciucat~on's material aiid remove it from the

marketplace.

This perxnzssion does not allo~r the raprbi~uct~on of and .material copyrighted in or credited

fo fihe zzau~e of any person or entity other than the ~1.1bTisher named above: The prxbIishez•

n~sned above disclaims all Jiability in connection ~tit1~ your use of s1.1ch material wzthout

propex consent:.

f£.stoj(e Costa

Pe~•rnrsrions.~dirtirristrator

Pearson ~'dzreation, .Irrc

SOI Boylsto~r St~~eet

Boston, MA 02X16

Tel: 617-671-3445

Fax: 6I7-671-3447

Email

' ~ ..

Please visit the foTlowirrg ivebsite to access our Disabzlity.Req:rest I"orm I~you crre requesting an a7temvtive

formcrtfor the pr8nt zmpairetJ.~

`~1

EEOC137 MCCCU/Martinez 03~,

t

r_aRtzrcrin~ n~z~re

Case 2:15-cv-01759-NVW Document 73-5 Filed 03/03/17 Page 107 of 178
(~ 7 ~11ew Edition: Permission ~to capy se%cfed Homework Problems

Your Re:Eerence Perrxzissioz

REq~.es~t

Div: Ol2:ISBN:'9'780321645081

Raq No: 39028; Gust No: 7.5205

Date: N1AY I3 10 Via Fax: 602-285-

76b$

Cleopatria Martinez

Plaoeni.~ Collage

1202 W. Thomas Rd.

Phoenix, AZ 85013

is hereby gz~anted,permission to use the material i~dicatecl in 1:he followizag

ackno~rrledgement. This acicnotivledgement must be ~axriec~ o~. the: copyright or

acknowledgements page ofyour book ox as a footnote ozx fhe gage on 'which the material

appears:

Sullivan, l'RECALCiJLUS:.COHCEPTS T~3~ZO~7GH FCJNGTIONS; A RIGHt ~'ItIANGLE APPR, OO

2011 Pearsozz Eclucatio~, ~zc. Reprinted. by peznaission of'F'earson. Education, Inc.

Please zzote: Ifttle .material is Co be stapled ox bound, the credit line must appear on the

first page. on ~vl~ch our material -appears. Ifngt staptecl o~ bound, the credit ~irze must

~.ppear on eac1~ page of oiYr znateriat.

This material z~ray only be used in the following manner:

To ukake up to 50 copies of selected Homework Frob~azais from each section of Chapters 6,

7, 8 .and 9 for Professor Mas~kiuez and st~idents for the course MAT18'7- PRI;CAI,CULUS

~e~inning Fa1120:l0 at PhoeniX College. S'ermission is granted free offee on the

uzzderstanc~ing that the above. te~book has been adopted for the course- _and purchased by

the students.

EEOCI38 MCCCD/M~rtinez

Case 2:15-cv-01759-NVW Document 73-5 Filed 03/03/17 Page 108 of 178
This pezxz~ission isnon-exclusive atld app7zes solely to the following languages) end

terz~tory:

Lauguage(s): English Territory: Phoenix College

IMPORTANT NOTICE:

Pearson Education, Tnc. resezves ~e right to take anq appropriate action if you have need

our~inteIlectual property.in violation ofa~.y ofthe xegnireinents sat forth in this

perzz~issions letter. Such ac~Zoxt znay include, but is not Iirnited to, t1~e right to demand that

you cease and desist in~your use of Pearson Education's matez~al and remove it from the

~narket~lace.

This permission does not allo~v~ie reproduc~io~a ofatay material copyrighted in ox credited

to lie ~zame of any person ox entity othex tJ~an the pltblzsher named above. T1ae publisher

narrzed above disclaims all liability irz connection with your use oFsuch material ~cxritl~or~t

propex consent.

~i. ~irr~7~

Please visit the folTorving website to access our TJisability Request Fcirzn ifyatr are requesting 1n alternative

Format for the print aznpaired;

EEOC139 M('CCD/Ma►•tinez 032:

Case 2:15-cv-01759-NVW Document 73-5 Filed 03/03/17 Page 109 of 178
EXHI~11' 25

MCCCD/Martinez 03232 i

Case 2:15-cv-01759-NVW Document 73-5 Filed 03/03/17 Page 110 of 178
Re: Convers~►tion Today

~rtiti~~~ ~r~~ ~~

Subject: Re: Conversation Today

]Erc~m: Lee Combs <les.combs@domail.maricopa.edu>

Date: Thu, 0$ Apr 2010 15:53:15 -0700

To: Margaa-~t McConnell ~margaret.nncconriell@domail.rrtarieopa.edu>

CC: Cleopatria Martinez <cleopatria.martine~@pcznail.maricopa.edu>, Amaa Solley

<anna.soliey~a pcznaii.maricopa.edu>, Casandra Kakar <casandra.kakar@pcmail.maricopa.edu>

I would add these points.

With a staff of three lawyers, we can not be in the business of certifying that course materials created

by every faculty member every semester are compliant Frith copyright law. Moreover, our obligation is

to encourage and support legal compliance, not to assist a client to evade the law's intent and hope our

frazl argument can get the client out of trouble. That obligation is not well served when we are asked to

substitute advocacy for advice, as seems to be the case here. Maggie is essentially asked to approve the

rest2lt of an inherently risky strategy - modifyzng or "tweaking" a te~book pi~oblem by changing the

numbers. This "fine tuning" just makes a derivative work, use o~which without permission is no Less

zllegal. There is always a degree of uncertainty as to what constitutes fair use, but given the size of the

penalty for each vialatian it is not in the legal interest ofMaricopa Con~nnunity Colleges or az~y

individual faculty member to test the limits of tk~at uncertainty. Uur advice is that the risk of ir~cuming

penalties involved in pursuing that strategy are essentially the same as copying: they are unacceptably

high fror.~ the institution's standpoint, and the strate~,y must not be used.

Courts tend to r~;ject arguments made under the so-called Fair Use I~octrine when the e$'ect of a

practice is to u~der~:aine the market for a work. In this case, I understand that there is a consistent

pattern: students in Ar. Martinez' classes either do not purchase the xec~~ired tee or take it back for a

refund after learning about the course materials. The demonstrab~ market effect vitiates any other

argument that what she is doing is Fair Use. Tar. Martinez' self evident intention to sane students

money is honorable, but the means. she has used is illegal and exposes her individually to substantial

.financial penalties, as well as the risk of a plagiarism charge.

Our advice is that the course matezxa~s Dr. Martinez distributes to classes must be clearly and.

demonstrably her own ori~>in~l work, unless she attributes authorship to another, whose permission far

such use is documented.

Margaret McConnell wrote:

Cleopatria -

Tbis is a summary and afollow-up to our conversation today, in which you asked for time on my

schedule to review soma of your class materials. When I advised you to speak to your librarian

about these questions, you responded that the librarian had advised you to speak to me.

7t is my understanding that you wanted advice concerning whether, in your words, chant ng a

number from a 3 to a S or a plus to a minus from someone's copyrighted math equation,

presumably in a tee book, would avoid a copyright violation. I explained to you that numbers and

1 of 2 MCc5Q3~261~'Y[~64~~f233

Case 2:15-cv-01759-NVW Document 73-5 Filed 03/03/17 Page 111 of 178
Re: Conversation Today

Zj_..-c~ ~- } a

sequences of numbers are within the definition o~ "literary works" under the federal copyright law.

While I noted that "2 -~- 2 = 4" is not copyrightable, I advised that more complicated math

equations are. I stated #hat the only way for you to insure that you do nat violate copyright i~ to

make up the math equations completely on yaur own to illustrate a math theory. As I noted, that

would be the only safe approach and, with your advanced de~-e~ and your yeaz's oFexperience

that should not be di~cutt.

You std indicated that you wished for rrie to review your materials. (You also advised that you

could not attend the special presenta~ioz~ that I and Hazed Davis prepared on copyright law for

Phoenv~ College last month because of other commitments.) However, as I reiterated, I'm not

going to be in a position to tell you whether -the changing of a number or two, ox of a

mathematical sign, is enough.

In ;fact, no MCCCU employee is goi~~ to be in a position to tell you that "tweaking" is OK,

particularly when the owner of the original work isn't given credit for the "tweaked" work. The

verdict under the law would almost certainly be that "tweaking" mould not solve the problem, and

that is the ansv~rer that you are _going to get from a wide range of folks that you might consult.

Changes to a.t~ sxi#ing copyrighted work ma1~e the work a derivative under the Iaw, and the

copylYght owner afthe original work has rights in that changed work as well as to the original.

It appears from our conversation that you persist in thinking, however, that "tweaking" at a certain.

point ~ri11 be ~K from a copyright standpoint. That is #roublesome, given that the college and, to

some de~-ee, this office have been dealing with you on this issue at a minimum for nearlq tiro

months. The moz-e that yo~t push to find a bright line between a copyright violation and changing

someone's work to make it appear to be original, which does not east in the law, the more it will

be difficult for your department and administration to feel comfortable with giving you copyuag

privileges.

You may avoid all of the questions and potential legal pitfalls by simply crafting all of the

illustrative equations in your lecture noes yourself. I have received a copy of the letter that Dr.

Soiley recently sent you concerning; these matters and riven the potential ~'or personal liability on

them in the future, I would urge you to create yo~ir own equations. Based on the observations I

make in this note, it will not be useful fir us to meet and go over yoixr materials.

Maggie

61A2i1C0PA

COMMUNI YY

'_.. Margaret E. i44cConnell ~.7lfice of ~~neral ~oves+~E

<" n;.;is~crntG~rr~rad Cr~ut~rsel 2411 West tdthStreet

Tempe, AZ 85281-69. 2

Tel: ~180.7~31.8888 F+ax: ~8{?.731,Ei89Q

~v~ar ~~~ . r ~ ~~tr~ ~o,~ a. e~:~ll eg ~1

Z oft MC~~~P01~(l-8~fi~~34

Case 2:15-cv-01759-NVW Document 73-5 Filed 03/03/17 Page 112 of 178
NICCCD/M~rtinez 03235

Case 2:15-cv-01759-NVW Document 73-5 Filed 03/03/17 Page 113 of 178
1

.~

~•^`' ~- ~~~ l--~-

~`

FF ~._t-~.,i

'..

MCCCD/Martinez~03236

Case 2:15-cv-01759-NVW Document 73-5 Filed 03/03/17 Page 114 of 178
.~

~ 3

~~ ~~ ~~

~ p , j ~ ~ ~

C ~~ '~ ~ C 1 4

~ ~~ ~

Case 2:15-cv-01759-NVW Document 73-5 Filed 03/03/17 Page 115 of 178
Case 2:15-cv-01759-NVW Document 73-5 Filed 03/03/17 Page 116 of 178
EXH I ~ IT 35

MCCCD/Martinez 03239

Case 2:15-cv-01759-NVW Document 73-5 Filed 03/03/17 Page 117 of 178
Pabe 1 of 2

April Roll

from: Cleopatria Markinez [cleopatria.martinez@phaenixcollege.edu]

Sent: Friday, November 01, 2013 1:45 PM

To: April Roil

Subject: Fwd: Electronic Copy of Dec 9, 2010, lefter

---------- Forwarded message ----------

From: <cleopatria.z~nartinez(c ~cmaii.maricopa.edu>

Date: Fi7, Jan 7, 2011 at 4:16 PM

Subject: Re: Electronic Copy of Dec 9, 2010, letter

To: am~a.sollevnpc~nail.maxicopa.edu

Cc: renee.pen-y~pcmail.znaricopa.edu

January 7, 2011

Deaa~ President Solley,

Mr. Eddie C enna said you wanted me to direct :my questions and concerns to

you regaxding your letter of December 9, 2010. There are areas of clarification

I need.

Please clai~ily what you mean by ?course matexials? when you say I must ?use

only course materials appxoved by the department, that are available in the

bookstore for sale to the students and that are authored by persons other

than yotuself.?

t.`~Sl ~ WTll(: rily OWTI tGSt5~

What about my use of uiuversal math Iorrnulas for graphs, trigonometry, acid

calculus which I selected and prepared for my students to memorize bait I

have not found such documents in other materials?

Can I use rz~aterials authored by nay colleagues in the math department?

Specifically what are you referri.nb to when you say ?I have also considered

our experiences under the ctuxent temporary arrangement??`?

I am not aware of any ?prinCing or copying? of ?unauthorized materials'? or

failure ?to follow the law as well as IVlaricopa policies and procedures?`?

during stunner and fall 2010.

I want to rectify whatever Misunderstanding has occurred btrt I need to know

details.

T tk~ank you for yotu• response to these questions.

Cleopatria

>-- Original Message --

>Date: Fri, 10 Dec 2010 "16:43:12 -0700

>From: Renee Perry <renee.perry(a~pcmail.maz~icopa.edu>

>To: "cleopatria.martiner" <cicopatria.martinez~pcmail.maricopa.ec~u>

>CC: Anna Soliey <anna.solley a,pcmail.maricopa.edu>

>Subject: Re: Electronic Copy of Dec 9, 2010, letter

MCCCD/Nlartincr 03240

1 T/1/2013

Case 2:15-cv-01759-NVW Document 73-5 Filed 03/03/17 Page 118 of 178
Page 2 of 2

>Per your request.

>rp

>On 12/9/2010 11:35 AM, cleopafria.martinez wrote:

» Good morning Dx. Solley, 12-9-10

» Please provide me with an electronic copy of the letter that tivas

» handdelivered to me today.

» ~'~1~TI~C YOLl,

» Cleopa~ria

>Attachznent: c.marEinez.l2_9_lOdocx-l.pdf

>Attachxnent: xenee~erry.vef

Cleopatria Martinez,PhD

Professor of Mathematics

Department of IVtathematics

Phoenix College--MCCCD

1202 W. Thomas Road

Phoenix, Arizona 85013

Office: GU~.285.7390

Fax: 602.285.7668

Cl~opatria Martinez, I'hD, Department of Mathematics, Phocni~, College 80213, (602) 2$5-7390

Cada cabeza es un rnundo.

MCCCD/Mar•tincz 03241

z liiizo~3

Case 2:15-cv-01759-NVW Document 73-5 Filed 03/03/17 Page 119 of 178
EXI~~~IT° 3~

MCCCD/Ma►•tincz 03242

Case 2:15-cv-01759-NVW Document 73-5 Filed 03/03/17 Page 120 of 178
Page 1 of 2

April Roll

From: Cleopatria Martinez (cleopatria.martinez@phoenixco€lege.edu]

Sent: Friday, November 01, 2013 1:45 PM

To: ApriE Roll

Subject: Fwd: FW: Acknowledgement of Receipt

---------- Forwarded message ----------

Frona: David Munoz <dmano~7 cz,cox.nei>

Date: Tue, Jan 11, 2011 at 11:19 AM

Subject: FW: Acknowledgement of Receipt

To: cleopatria.mactitzez(a~pcmail.marieopa.edu

Cc: j v <julianini ct,hotmail.com>

-----Original Message-----

From: Copyright Off ce [mailto:co~~-rc cr,loc rov]

Sent: Tuesday, :fa~ivary 11, 2011 11:09 t1M

To: drnunoz'7 cr,coY.net

Subject: Acknowledgement of Keceipt

THIS IS AN AUTOMATED EMAIL - UO NOT I~;PLY.

Thank you for subrn tong your regist~~ation claim using the electronic Copyi7ght Office {eC0) System.. This

email confirms that your application and fee for the woxk Math is a foreign language for many people was

received on 01/12/2011. The following applies to registration claims only {not preregist~~ations):

The effective date of registratiozi is established when the application, fee AND the material being registered

have been received_ If you have not yet sent the material to be registered, logon to eC0 and click the blue case

number associated with your claim in the Open Cases table, then do one of the :following:

For digital uploads: Click the Upload Deposit button at the top of the Case Summary screen, then browse and

select the files) you wish to upload. Note: only cet~t~in classes of works may be regzstexed wifh digital deposits

{See FAQs: http://~vww.con~~ri~~,ov/eco/fac~.htn11#eC0 1.4).

Por hardcopy submissions: Click the Create Shipping Slip biGttan at the top of the Case StYminlry screen, then

click the Shipping Slip link That appears in the Send By Mail table. Print out and attach the shipping slip to the

copy(ies) of your work. I~'or multiple works, be sure to attach shipping slips to the corresponding copies.

A printable copy of the application will he available within 24 hours of its receipt. To access the application,

click the My Applications link in the left top most navigation menu of the Home screen.

You will be issued a paper cez~tificate by mail after the re~islration has been coXnpleted. You may check the

status of this claim via eC0 using this number [1-543779971].

[THR~AI7 ID: 1-91 K79L]

iJnited States Copyright Office

MCCCD/Martinez 03243

11/1/2013

Case 2:15-cv-01759-NVW Document 73-5 Filed 03/03/17 Page 121 of 178
Page 2 of 2

Cleo~~ataia Martinez, .PhD, Deparinlent oFMatlaematics, Phoenix, College 80213, (602} 285-7390

Carla cabeza es un munclo.

MCCCD/Ma►•tinez 03244

11!1/2013

Case 2:15-cv-01759-NVW Document 73-5 Filed 03/03/17 Page 122 of 178
EXH I B iT 37

MCCCU/Martinez 03245

Case 2:15-cv-01759-NVW Document 73-5 Filed 03/03/17 Page 123 of 178
Page 1 of 1

April Roll

From: Cleopatria Martinez [cieopatria.martinez@phoenixcollege.edu]

Sent: Friday, November 01, 2013 1:45 PM

To: April Roli

Subject: fwd: Pay.Gov Payment Confirmation

---------- Farwarded message ----------

~rom: <uav~ovadmin ~r,mail.doc.twai.rov>

Date: Tue, ian 11, 2011 aC 11:09 AM

Subject: Pay.Gov Payment Conf"u~naation

Tv: "cleopatria.mai-tinez(c~pcmail.lnaricopa.edu° <cleapatx~a.martinez(cr,~pcx~~ail.inu-icopa.edti>

THIS IS AN AUTOMATED MESSAGE. PLEASE DO NOT REPLY.

Your transaction has been successfi.~lly completed.

Transaction Summary

Application Name: Copyright Fee Services

P~y.gov Tracking ID: 252A1B55

Agency Tracking ID: 1-91I~XID

Nan ze Or1 flccormt: David Munoz

~I'ransactiori Type: ACH Debit

Transaction ~riaount: $35.00

Payment ll1te: Jan 12, 2011

Account Type: Personal Checking

~Zouting Number: 122105278

Acco~zntNumber: **'k*~`***^`**x3192

Check. Nu~llber: 1 ~2

Transaction Date: Jan 11, 2011 1:09:18 PM

Number of Payments Scheduled: 1

Frequency: Oi1eTi~ne

C'leopatria Martinez, PhD, Department of Mathematics, PhoeiuY, College 8021 i, (602} 28.5-739Q

Carla cabeza es un mLtndo.

ll/1/2013 

MCCCD/Ma►•tinez 03246

Case 2:15-cv-01759-NVW Document 73-5 Filed 03/03/17 Page 124 of 178
~)CHI~fT 44

MCCCD/Martinez 03247

Case 2:15-cv-01759-NVW Document 73-5 Filed 03/03/17 Page 125 of 178
Page 1 0~ 1

April Roll

From: Cfeopairia Martinez [cleopatria.martinez@phoenixcoilege.edu]

Sent: Friday, November 01, 2013 2:05 PM

To: April Roll

Subject: Fwd: Meeting Request

---------- Forwarded message ---_______

From: Anna Solle~ <anna.sollev rr,pcniail.maricopa.edu>

Date: This, Feb 17, 2U1 i at 5:35 PM

Subject: Ke: Meetv~g Request

To: cleopatria.mactrnez(i~pcmail.maricopa.edi~

Cc: Lee Combs <lee.combs a,domail.maricopa.edu>, Casandra Kakar <casancira.kakar~.pctnail.maricapa.edu>

llr. Martinez, please send z~ae a written proposal that includes your recomtnenc3aCions.

Sincerely,

Anna Solley, ~d.D.

President

Phoenix College

cleopatria.martinez(n~pcmail.nlaricopa.edu wrote:

Dear• Dr. Solley, 2-16-11

I am asking to meet with you to resolve the cotztinuing issue of my academic

fieedozn and to end the impasse that I believe exists between the Phoenix

College administration and me. I feel fihat your directive does not allow

me to do any job as a faculty member.

I would like to propose a middle grotmd that all parties can live ~~vith.

I look forward to receiving yotu• response.

Respectfully,

Cleopatria

Cleopatria Ma~-tinez,PhD

Professor of Mathematics

Department of Matherrtatics

Phoenix College--MCCCD

1202 W. Thomas Koad

Phoenix, llrizona 85013

Office: E022$5.7~90

Fax: 602.285.7668

Cleopan•ia Martinez, PhD, Department of M~t~ierriatics, Phc~eniY, College 80213, (602) 285-7390

Cada cabeza es im mundo,

MCCCD/Martinez 03248

11/:1/2013

Case 2:15-cv-01759-NVW Document 73-5 Filed 03/03/17 Page 126 of 178
Page 1 of 1

Apri} Roll

From: Cleopatria Martinez [cleopatria.martinez@phoenixcollege.edu]

Sent: Friday, November 01, 2013 2:Q5 PM

To: April Roll

Subject: Fwd: Meeting Request

---------- Forwarded message -------___

From: Anna Solley <amia.solley_(a)pcmail.maricopa.edu>

Date: Thu, Peb 17, 2011 at 5:35 PM

Subject: Re: Meeti~ig Request

To: cleopatria.ma~~tinez(u~7pcmail.maricot~a•edu

Cc: Lee Combs <lee.comhs~r ,domail.maricopa.edu>, Casandra Kakar <casandra.kakar(~pcmail.maricop~.edu>

Ur. Martinez, please se1~d me a written proposat that includes your recommendations.

Sincerely,

Anna Solley, Ed.D:

President

Phoenix College

cleopatria.nlai-~inez(c~,pcmail.tnlricopa.adu wrote:

Dear Dr. Solley, 2-16-11

I gun asking to ~~eet with you to resolve the continuing issue of my academic

freedom and to end tl~e impasse Lhat I believe exists between the Phoenix

College administration and ine. I feel that your directive does not allow

me to do my job as a faculty ~ne~riber.

I would like to propose a middle ground that all parties can live with.

I look forward to receiving your response.

Respectfiilly,

Cleopatria

Cleopatria Martitiez;PliD

Processor <~f Mathematics

Department of Mathematics

Phoe~~ix College--MCCCll

1202 W. `~'hon~as Road

PhoeriiY, Arizona 85013

Ottice: 602.285.7390

Fax: 602.285.76E 8

Cieopatria 1Vlartinez, PhD, Department of Mathematics, Phoenix; College 80213, {602) 285-7390

Cady cabeza es un mundo.

MCCCD/Martinez 03249

1 ]/1/2013

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EXH I ~ fT 45

MCCCD/Martinet 03250

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EXH ~ ~ fT 47

MCCCD/Martinez 03251

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Page 1 of 1

April Rolt

From: Cteopatda Martirez (rteopatriz.martinez@phoenixoollege.edu]

Sent: Friday, November Ot, 2013 2:13 PM

To: April Roll

Subject; Fwd: December 9, 2010 Directive

Attachments: Bellamy—Intellectual Property Lmvyer.bmp; Bellamy page 2bmp

--------- Fonv¢rded message -•--------

Frnm: cleopatria.m~rtinez<cle~patria~martineznpcmail.maricopa.ediCDate: "fhu, Jao 27, 2011 nt 329 Piv1

Subject: Re: becember 9, 2010 Directive

Tv: Arena Solley <annasollev~7,pomail.m~ricopa.edu>

Lc: Lee Combs 4ee.combsndomail.maricopaedu>, CasandraKakar <casandra.kakar(~,pcmail.m.uicopa.edu>, Harold Cranswick <harold.cranswick(almcmail maricooacdu>, Eddie

Genna <eddie.senna ~cmait maricopa.edu>, tames Abdo <jabdo ~oapierla~~rm.com>, Michael Napier <mike~~napierlawfirm.com%, Melissa Sailors <msailors nma~ierla~~rm.com>,

Joe Sueyoshi <ioe.suevoshini ncmnil.maricona.ediv

Dear President Solley,

Tha~ilc you for your response [n my email dated I/7/2011. I wish to fully comply with the tcrzns of your directive. Would you verify my interpretafion below?

1) I am understanding that I cannot write tests, ynizzes, or handouts for sh~dents. With respect to tests and quizzes, X may only use problems from the textbook test bank or text

homework probleit~s. For my NtA7'1'l0 class, I may only use 1'im Bryan's tests if he Gives me permission. I am limited to using test questions which are in die textbook test banks or

homework.

2) I may write my syllabus. However, NU. Sueyoshi may restrict the content of my syllabus.

3) W hen I ase a colleague's material I may not change anything including the numbering of chapters from Roman Numerals to Arabic Nwnerals even iF the author gives permission for

such cha~iges.

4) By the PC Math Department Policy, nll math faculty (adjunct and residential faculty) may use'Tun Bryan's material However, you indicate that I "must obtain approval from Tim

Bryan Cor die use of his cctate~ials." Tim gave his approval to me in an email written to Joe. Was it yow understz~nding that perhaps I had not obtained his personal npprovai?

5) Universal math formulas/graphs are not copyrighted because they do not belong to a specific author. I select certain turmalas and graphs to be memorized by my students. There is no

auU~or other than myself for these selected formulas ar~d graphs. Consequently, I am not sure how to cite this kind of math content. Perhaps yon could provide me with copyright

guidance.

I do nod believe you responded fo the following question which T asked in my corzespondence of January 7, 20l 1. I need to know to what events you are refemng so that I can do better.

Specifically what are you referring to when you say "I have also considered our experiences under the current temporary

arrangement... "7 I am not awaze of any "printing or copying" of "unauthorized materials" or f uture "to follow the law as

we[I as Maricopa policies and procedures..." during swnmcr and fall 2010.

t want to rectify whatever misunderstanding has occurred but I need to know details,

Likewise, in the third paragraph of your directive dated December 9, 2020, you state "due to your reputed wpyright violations..." I trust you —

wit] identify these `Yepeated copyright violations" as requested in my previous paraenaph. I note that the Districts expert legal counsel did not

conclude with a finding of copyright violation but with a recommendation "to avoid the risk of copyright int~ingemenY' rind eoen affirmed: "We

c:umot state definitively whether des particular work was created independently, nor is there suC6cient evidence in the work itself for us ro form

nn opinion that it was copied From other sources without permission."

Mr, Fredric Se(lamy, an intellectual properry..Hurvard lawyer with nearly 2~ years experience, concluded that my `lechire notes clearly fall within the scope ofthe fair use doctrine in.copy

Thanking you in advance for your timely response.

RespectCuliy,

CleopaMa Martinez, PhD

Attachment: Lerier fiom Mr. Freelric D Bellamy

__ .a Diaz- - :.

_ .._ ..... :qc, r.. _.,

Cleopatria Martinez, PhD, Department of Mathematics, Phoenix, College 80213, (602) 28~-7390

Cady cabeza es tin mundo.

1 1/1/2013 

MCCCD/Martinez 03252

Case 2:15-cv-01759-NVW Document 73-5 Filed 03/03/17 Page 130 of 178
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MCCCD/Martinez 03253

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MCCCD/Martinez 03254

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EX.H I ~ 1T 53

MCCCD/Martinez 03255

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Page 1 of 2

• . - . '~

from: Cleopatria Martinez [cleopatria.martinez@phoenixcollege.edu]

Sent: Friday, Noverr~ber 01, 2013 2:20 PM

Ta April Roli

Subject: Fwd: Textbook Required?

---------- Forwarded message ----------

From: cleopatria.martinez <cleopatria.martinezCc~~acmail.tnaricopa.edu>

Date: Mon, Apr 11, 2011 ~t 8:06 AM

Subject: Re: Textbook Required?

Tv: Wilbert Nelson <Wilbert.Nelson(~phoenixcollege.edu>

Cc: "joe.sLteYoshi cr,pcmail.maricopa.edu" <doe.sueyoshina,pct~ail.maricopa.edu>, 

"casandra.kakar(~~crnail.maricopa.edu" <casandra.kaklr(7a,ncnnail.maricopa.edu>

Wilbert, 4=11-fi

This is a policy quesfion. What is the policy regarding texfibook adoption by faculty? Do we have the option of

recommending, requiring, highly recommending a texfibaok? T will of course always use material that will give the

students) the fioundation they need to succeed in the completion of their educational goals, Z simply wish to know

'the olic regarding the textbook so I can respond to an email from Kelly Loucks regarding this topic..

I hope this clears it up for you but if you have additional questions, please feel free to ask me,

Respectfully,

Cleopatria

Wilbei-~ Nelson wrote:

Cleopatria.

Good afternoon, I am not in a position to respond to your question since I am not sure what the context of

it is. I would think Yhat one would be using a textbook for a math caurse since in my mind this.provides a

resource for the student and a reference point for the instructor. I would strongly suggest that you discuss

your concerns regarding this issue with your Department Chair and examine what the consequences are if

no textbook is used for the instruction of your course. The central question would be whatever material

that is used will it give the students) the foundation they need to succeed in the completion of their

educational goals.

Wilbert

From: cleopatria.martinez [mailto:cleopatria.martinet a pcmail,maricopa.edul

Sent: Friday, Aprif 08, 2011 1:10 PM

To: Wilbert Nelson

Subject: Re: Textbook Required?

11/1/2fl13 

MCCCD/M~rtinez 03256

Case 2:15-cv-01759-NVW Document 73-5 Filed 03/03/17 Page 134 of 178
Page 2 of 2

Good Afternoon Wilbert, 4-8-11

Just a friendly reminder 1'o please respond to my question: Cqn fQculty recommend or highly

recommend a textbook and not require it? May T hear from you by Monday, April 11?

Thank you,

Cleopatria

cleopatria.martinez wrote:

Goad Morning Wiiberf, 4-6-11

Are faculty required to re uire a textbook in their classes or can the faculty

member recommend or highly recommend a textbook without requiring it?

Please advise.

Thank you,

Cleapatria

Cleopatr.ia Martinez, PhD

Professor of Mathematics, Phoenix Co11eg~, 1202 W. Thomas Rd,

Phoenix Arizona 85013 W602-285-7390

~~ .-: ,.

..

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Cleopatria Martinez, PhD, Department of Mathematics, Phoenix, College 80213, (602) 285-7390

Cad~i cabeza es urn mundo.

MCCCD/Martinez 03257

11/1/2013

Case 2:15-cv-01759-NVW Document 73-5 Filed 03/03/17 Page 135 of 178
~XHIE~~T' S4

MCCCD/Martino 03258

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Page 1 of 4

April Roli

From: Cleopatria Martinez [cleopatria.martinez@phoenixcollege.edu]

Sent: Friday, November 01, 2Q13 2:20 PM

To: April Roll

Subject: Fwd: Request permission to copy my lecture notes

----------Forwarded message ---~------

From: <cleopatria.martinez cr,~cmail.maricopa.e~lu>

Date: Tue, Sep 20, 2011 at 2:28 PM

Subject: RE: Request permission to copy my lecture notes

To: "Lee, Karen" <karen.Iee(r.~,cenga e~ com>

llear Karen, 9-20-11

Thank you so much for helping me with this issue. I believe all possible

questions the administration may h~.ve are now addressed,

Have a great rest of the day,

Cleopatria

>-- Original Message --

>From: "Lee, Karen" <l~aren.lee(cr7,cenga e.com>

>"I'o: "cleopatria.naartinez(7,pernail.maricopa.edu"

> <cleonatria.martiz~ez(~7pcmail.maricopa.edi~

>Date: Tue, 20 Sep 2011 17:03:50 -000

>Subject: RI :Request permission to copy my lecture notes

>Dear Cleopatrza,

>Attached is a revised permission letter.

=>I changed the course title from Calculus to College Algebra. And removed

> 1 from the #otal pages. The total pages section is a mandatory #field and

shat was w~1y "1" entered. Whenever, we are unsure of the enact page count

>and page ranges o1'the material a "1" is entered into that field.

>I hope this clarifies things.

>Regards,

>Karen Lee

>Granting Manager, Rights Administration &Content Reuse

>Cengage Learning * 20 Davis Drive ~~ Belmont, CA 94002

>(o) 650.413.7438 ~ (e) karen.lee~cen~a~e.com ~ www.cen~aae.com/permissions

>-----Original Message__..__

>From: cleopatria.martinez~pcmail.maricopa.edu [mailto:cleopah~ia.lz~artinez~~pcmail.ma.ricopa.edu]

I

>Sent: Monday; September 19, 2011 8:20 PM

>To: Lee, Karen

11/1/2013 

MCCCD/Ma►•tinez 03259

Case 2:15-cv-01759-NVW Document 73-5 Filed 03/03/17 Page 137 of 178
Page 2 cif 4

>Subject: RE: Itec~uest permission to copy rzay Iechtre notes

>llear Karezl, :..

>Tllank you #or your prompt reply. However, there are a few adjustments I

>request. 1) The course is College Algebra.

>2) Total pages is listed as "1". I am zzot clear to what the "1"refers.

> The examples from the textbook which I use are found throughout the book--not

>necessarily on "1 °page. The Phoenix College administration may want me

to

>clarify this reference to "1" and at this tune I am not understanding the

>zneaning ol~the "1„

>Again, thank you for taking time to respond quickly. I know your time is

>valuable.

>Cleo~~atria

»-- Original Message --

»From: "Lee, Karen" <karen.lee~a),cenga~e,com>

»To: "cleopatria.martinez(a~pcmail.n~<~;icopa.edu"

» <cleo~atria.martzneznpernail.maricopa.edu>

»CC: "Park, Jane" <Jaa~e.~'ark a,cen~a e.conl>

»Date: Mon, 19 Sep 2011. 20:2 :36 -0400

»Subject: R~: Request permission to copy my lecture notes

»Dear Cleopatria,

»Attached is a pei~rnission lettex granting qou permission to us the material

»as stated below. For future requests, you can submit thezx~ at www.cenga e.com/permissions.

» _-

»Reg~~rc~s, -

»Karen I,ee

»Granting Manager, Rights Admiinistration &Content Reuse

»Cengage Learning * 20 T3avis Drive *Belmont, CA 94002

»(o) 650.413.7438 ~ (e) lcaren.lee(a7cen~ace.com ~ www.ce~~a~e.comlper~nissions

~.

»-----original Message-----

»I'rom: cleopatria.nlarti~iez(cr~7pernail.maricopa.edu [rnailto:cleopatrza.martineL ~~cmail.maricopa.edu]

»Sent: Manciay, September 19, 2011 4:59 PM

»To: Lee, Karen j

»Cc: Park, Jane

»Subject: Request permission to copy my lecture notes

»Goad afternoon Karen, 9-19-11

»I have adopted and use your textbook (College Algebxa with Applications

>for

»Business and the Life Sciences by Larson &Hodgkins, 2009), and students

»are rec~uzred to purchase it far el~ss.

»Instead of writing on the board, I write an paper which is projected onto

»a screen for students to see and take notes. Every now and then I use

examples

11%1/2013 

MCCCll/M~rfinez 03260

Case 2:15-cv-01759-NVW Document 73-5 Filed 03/03/17 Page 138 of 178
Page 3 oE4

»~i~orn the adopted textbook iri my lectures to demonstrate 1 concept. Some

>of

»my students have asked that I make copies for them olthese lecture pages.

»In order to make i:hese copies far the students, tlae Phoenix College administration

»has asked me to provzde them with correspondence Pram you indicating that

»it is all right with you that I snake copies oI' my lecture notes for students.

» The administration also wishes to be assured that you are aware that some

»examples from the adopted textbook axe used in my lectures, and that you

»find this to be an acceptable practice.

»Please respond as soon as possible so that I may get copies of my lecture

»pages to give 'to my shidents.

»Thank you for your time and effort in this matter,

»Cleopatria

?~

»1'S Xou may remember me since in December 20}.0 I asked you if I neectecl

your

>pennission to use a table of integration formulas which I had written for

»my calculus class. Oiu department had adopted a different textbook, but

»the integration formulas were also found in your textbaolc; so my administration

»was- concerned that I did not have your permission to use the table I had

»developed since these same formulas were found in a similar table in your

»teebook.

»Cleopatria Martinez,PhD

»Professor of Mathematics

»Department of Mathematics

»Phoenix College--MC;CCD

» 1202 W. Thoz~aas Road

»Phoenix, Arizona 85013

»O~fice: 602.285.7390

»FaY: 602.285.7668

l~

»Cleopai7-ia Martinez,PhD

»Professor of Mathematics

»Department of Mathematics

»Phoenix College--MCCCD

» 1202 W. Thomas Road

»Phoenix, Axizona 85013

»Office: 602.285.7390

»Fax: 602.285.7668

»Attachment: 262761-20110919.pdf

>Cleopatria Martinez,PhD

>Prolessor of Mathematics

>Department of Mathematics

>Phoenix College--MCCCD

11/1!2Q13 

MCCCD/M~rtincz 03261

Case 2:15-cv-01759-NVW Document 73-5 Filed 03/03/17 Page 139 of 178
> 1202 W. Thomas Road

>Phoenix, Arizona 85013

>Office: 602.235.7390

>FaY: 602285.7668

I

>Attaci~nent: 2627b 1-2011092Q.pdf

Cieopatria Martinez,PhD .

~'rofessor of Mathematics

Department of Mathematics

Phoenix College--MCCCD

1202 W. Thomas Road

Phoenix, Arizona 85013

Office: 642.285.7390

Fax: 602.285.76b8

Cleopatria Martinez, PhD, Department of Mathematics, PhaeniY, College 80213, (602) 285-7390

Cada cabeza es un niundo.

Page 4 0l 4

11/1/2013 MCCCU/Martinez 03262

Case 2:15-cv-01759-NVW Document 73-5 Filed 03/03/17 Page 140 of 178
~ ~ • •

MCCCD/Martinez 03263

Case 2:15-cv-01759-NVW Document 73-5 Filed 03/03/17 Page 141 of 178
Wage 1 of 2

April Roll

From: Gleopatria Martinez [cleopatria.martinez@phoenixcollege.edu]

Sent: Friday, November 01, 2013 2:25 PM

7'0: April Roll

Subject: Fwd: Copy Request: Trig Identities

---------- Forwarded message ----------

rrom: Casandra Kakar <Casandra.Kakar(c7~,phoenixcolle~e.edu>

Date: Wed, Oct 12, 2011 at 8:39 AM

Subject: RE: Copy Requast: Trig Identities

To: "cleapatxia.niartinez a,pcmail.inaricopa.edu" <~~eopatria.martinez(c~pcmail.n7aricopa.edu>

Ce: "Joe Sueyoslu {joe.sueyoshi cz,pcmail.marieopa.edu)" <joe.suevoshi(c~pemail.n~aricopa.edu>, Anna Solley 

<anna.sollevC~pemail.maricopa.edu>, "Lee Combs (lee.cc7mbs(a),do.~nail.inaricapa.edu)"

<lee.combs ,c~r,domail.inaricopa.edu>

Dr. Martinez,

The use of rrxaterials you have created and the printing of the materials is in violation of the 12/9/10 directive

from the president.

Casandra

-----Original Message-----

Froin: cleopatriarnartinezn~pcinail.maxicopa.ed~~ [zn~ilto:cleouatria.martinez(~pcmarLmaricopa.edu~

Sent: Tuesday, October 11, 2011 4:37 PM 

To: casandra.kakar(a7perrxail.maricopa.edu

Subject: Re: Copy Request: Trig Identities

Hi Casanclra, 10-X 1-I 1

Joe has asked that I acknowledge the Sullivan and Sullivan MAT187 textbook as the source of the

trigonometric identities document before he c1n approve rt for copying. I also wish to use an amended version

of this doctunent as a test I do not feel comfortable acknowledging the textbook as the source as I am the

source of the document; therefore, such an acknowledgement would be a falsehood. The attached document opt

trigonometric identities is important for the instruction, learning, and success of my students. Please advise.

Cleopatria

>-- Original Message --

>Date: Tue, 11 Oct 2011 15:46:51 -0700

>From: Joe Sueyoshi <toe.sue~shinpcnnail.n~aricopa.edu>

>To: cleopaixia.martineznpcmail.maricopa.edu

>CC: Casandra Kakar <casandra.kakar~pcmail.znaricopa_edu>,

Kelly Loucks <kelly:loucks ~pcmail.maricopa.edu>

>Subject: Rc: Copy Request: Trig Identities

>Please acknowledge the Sullivan &Sullivan MAT187 textbook i11 your

>"notes" beFore I can approve it.

>If you are claiming this document as your own, then by the Directive, I

11/1/2013 MCCCD/Martinez 03264

Case 2:15-cv-01759-NVW Document 73-5 Filed 03/03/17 Page 142 of 178
Page 2 of 2

>canriot approve it.

>joe

>On 10/8/2011 8:56 ~1M, c~eopatria.martitiec a,pcmail.maricopa.edu wrote:

» Joe, 10-15-11

»Please make 30 copies of the attached trig identities on

»lavender-colored papaer.

» Thanks,

» Cleopatria

» Cleopatria Martinez,Phll

» Professor of Mathematics

» Deparfinent of Mathematics

» Phoenix College--MCCCD

» 1202 W. Thomas Road

» Phoenix, Arizona 85013

» Office: 6422$5.7390

» Fax: 602.285.7bb8

Cleopatria Martinez,PhD

.Professor of Mathematics

Department of Mathematics

Phoenix College--MCCCD

1202 W. Thomas Road

Phoenix, flrizona 3SOI3

Office: 602.285.7390

Fax: 602.285.7668

Cleopatria Martinez, PhD, Department of Mathematics, Phoenix, College 80213, (602) 285-7390

Cada cabeza es un mundo.

71/1/2013 MCCCD/M~rtinc 0326.5

Case 2:15-cv-01759-NVW Document 73-5 Filed 03/03/17 Page 143 of 178
T ■ ~

t

Case 2:15-cv-01759-NVW Document 73-5 Filed 03/03/17 Page 144 of 178
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Stephen Montoya (#011791)

Montoya, Jimenez &Pastor, P.A.

3200 North Central Avenue, Suite 2550

Phoenix, Arizona 85012

602-256-6718 {telephone)

602-256-6667 (fax)

stephen@montoyalawgroup.com

Attorney for Cleopatria Martinez

BEFORE THE GOVERNING BOARD OF THE

MARICOPA COUNTY COMMUNITY COLLEGE DISTRICT

Maricopa County Community College

District,

v.

Cleopatria Martinez

CLEC~PATRIA MARTINETS

CITATION OF SUPPLEMENTAL

AUTHORITY

Professor Martinez directs the Hearing Committee's attention to the case of

The Authors Guild v. Googfe, Inc., 05 Civ. 8136 (DC), decided by fhe United

States District Court for the Southern District of New York only yesterday,

November 14, 207 3.

In The Authors Guild case, the Honorable Denny Chin, a judge of the

United States Court of Appeals for the Second Circuit, sitting by designation as a

District Court Judge, dismissed a copyright infringement action asserted by both

authors and an association of authors ("the Author's Guild") against Gaogle based

upon Google's digital scanning of aver twenty (20) million copyrighted books

made available on the Internet to the public at large for searches and preview on

"Google Books."

In dismissing the action, the District Court concluded that Google's copying

MCCCD/Martinez

Case 2:15-cv-01759-NVW Document 73-5 Filed 03/03/17 Page 145 of 178
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and dissemination of the copyrighted materials was primarily for educational

purposes and consequently fell within the "fair use doctrine" of copyright law and

did not infringe upon the various plaintiffs' copyrights.

A copy of the District Court's opinion is a#tached hereto as Exhibit A.

The opinion conclusively demonstrates that Professor Martinez's limited,

classroom use of the mathematical formulas, calculations and problems that the

Administration claims violates federal copyright law squarely falls within the "fair

use doctrine" and did not violate federal, copyright law.

Respectfully submitted this 15" t day of November 2Q13.

MONTC?YA, JIMENEZ &PASTOR, P.A.

s/ Stephen Montoya

Stephen Montoya

3200 Norfih Central Avenue, Suite 2550

Phoenix, Arizona 85Q12

Attorney for Plaintiff

MCCCD/Martinez s

Case 2:15-cv-01759-NVW Document 73-5 Filed 03/03/17 Page 146 of 178
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f hereby certify that on November 15, 2013, the foregoing document was sent via

email to:

Ernest Calderon

Ridenour Hienton & ~.ewis, PLLC

ecalderon(a~rhlfirm.com

Counsel to the Hearing Committee

Pavneet Uppa!

Fisher &Phillips, LLP

pu~palCa~laborlawvers.com

Attorney for Maricopa County

Community College District

Keith J. Crudup

Keidz02681(u7mesacc.edu

Committee Chair

Nora Amavisca Reyes, Ed.D

Nora. reyesCc~mesacc.edu

Hearing Committee

Carlos Caire

Carlos.caireCa~southmountaincc.edu

Hearing Committee

s/ Stephen Montoya

-3- MCCCD/Martinez 19

Case 2:15-cv-01759-NVW Document 73-5 Filed 03/03/17 Page 147 of 178
MCCCD/Martinez 03420

Case 2:15-cv-01759-NVW Document 73-5 Filed 03/03/17 Page 148 of 178
Case 1:05-cv-08136-DC Document 1088 Filed 11/14!13 Page 1 of 30

UNITED STATES DISTRTC'I' COURT

SOUTHERN DISTRICT OF NEW YORK

.. _ _. ~ _ _ _ _ _ - - -- - - - -x

THE AUTI~ORS GUILD, INC., and

BETTY MILES, JOSEPH GOULDEN,

and JIM BQUTON, on behalf of

themselves and all others

similarly situated,

Plaintiffs,

- against

GOGGLE INC., _

nefendant.

t~s~c~ S~tN~r

na~aM~iv~

~L~CT~,iQPII~ ACL,~;~ ~ AILED

OPINION

05 Civ. £3136 (DC)

- - - - - _ _ _ _ - - - - --x

APPEARANCES: (See last page)

CHIN, Circuit Judges

Since 2009, when it announced agreements with several

major research libraries to digitally copy books in their

collections, defendant Google Inc. ("Google") has scanned more

than twenty million books. Tt has delivered digital copies to

part- icipati.ng libraries, created an electronic database of books,

and made text available for online searching through the use of

"snippets." Many of the books scanned by Google, however, were

under copyright, and Google did nod, obtain permission from the

copyright holders for these usages of their copyrighted works.

As a consequence, in 2005, plaintiffs brought this class action

charging Googly with copyright infringement.

Case 2:15-cv-01759-NVW Document 73-5 Filed 03/03/17 Page 149 of 178
Case 1:Q5-cv-48136-DC Documen# 1088 Filed 11/14/13 Page 2 of 30

Before the Court are the parties' cross-motions for

summary judgment with respect to Google's defense of fair use

under § 107 of the Copyright Act, 17 U.S.C. § 107. For the

reasons set forth below, Google's motion for summary judgment is

granted and plaintiffs` motion for partial summary judgment is

denied. accordingly, judgment wi11. be entered in favor of Google

dismissing the case.

BACKGROUND

A. The Facts

For purposes of this motion, the facts are not in

dispute. (See 9/23/13 Tr. 10-11, "15, 25-28 (Doc. No."1086)).1

They are summarized as follows:

1. The Parties

Plaintiff Jim Bouton, the dormer pitcher for the New

York Yankees, is the 1ega1 or benefa.cial owner of the U.S.

copyright in the book Ball Four. Plaintiff Betty Miles is the

legal or beneficial owner of the iJ.S. copyright in the book The

Trouble with Thirteen. Plainti~t Joseph Goulden is the legal or

beneficial owner of the U.S. ropyra.ght in the book The

1 When pressed a~ oral argument ~o identify any factual

issues that would preclude the award of summary judgment,

plaintiffs' counsel was unable to do so. (Ici. at 25-26).

-2-

MCCCD/Martinez 03422

Case 2:15-cv-01759-NVW Document 73-5 Filed 03/03/17 Page 150 of 178
Cass 1:05-cv-08136-DC Document 1088 Filed 11/14/13 Page 3 of 30

S_uperlawyers: The Small and Powerful Wor1.d of the Great

Washington Law Firms. (Google Resp. 9[9[ 1-3).2 A11 three books

have been scanned by Gaogle and are available for search nn

Goagle's website, without plaintiffs' permission. (Google Resp.

9I 4) Plaintiff The Authors Guild, Inc., is the nation's largest

organizaL- ion of published authors and it. advocates for and

supports the copyright and contactual interests of published

writers. (Google Resp. 9[9[ 7-8) .

Google owns and operates the 1.ar_g~st Internet search

engine in the world. (Google Resp. 9I 9) Each day, millions of

people use Google'.s search engine free of ct~a.rge; commercial and

other entities pay to display ads on Goagle's websites and on

other websites that contain Google ads. (Google Resp. 9[ 10).

Google is a for-p~otit entity, and for the year ended December

31, 2011, it reported over $36.5 billion in advertising revenues.

(Google Resp. 9[ 11) .

2 "Google Resp." re~'ers to Google's Responses and

Objections to plaintiffs' Statement of Undisputed Facts in

Support of Their Motion for Partial Summary Judgment (Doc. No.

1077). "P1. Resp." refers to plaintiffs' Response to Google's

Local Rule 56.1 Statement {Doc. No. 1071). I have relied on the

parties' responses to the statements of undisputed facts only to

the extent that fac-~ual statements were not controverted.

-3-

MCCCD/Martinez 03423

Case 2:15-cv-01759-NVW Document 73-5 Filed 03/03/17 Page 151 of 178
Case 1:05-cv-08136-DC Document 1088 Filed 11/14/13 Page 4 of 3d

2. The Google Books Project

In 2004, Google announced two digital books programs.

The first, initially called "Googly Print" and later renamed the

"Partner P:K~ogram," involved the "hosting" and display of material

provided by book publishers o~ other rights holders. (Google

Rcsp. 9[Y[ 13, 14}, The second became known as the "Library

Project," and over time it. involved the diga.tal scanning of books

in the collections of ~kxe New York Public Library, the Library of

Congress, and a number of university libraries. (Clancy Decl. 9[

5 (Doc. No. 1035) ; Goog~.e Resp. 9[~[ 25, 26, 27; Pl. Resp. ~[ 14) .

The Partner Program and Che Library Project together

comprisE the Google Books program ("Google Books"). (~oogle

F2esp. Y[ 15). A11 types of books are encompassed, including

novels, biographies, children's books, reference works,

textbooks, instruction manuals, treatises, dictionaries,

cookbooks, poetry books, and memoirs. (P1. Resp. 9[ 6; Jaskiewicz

Decl. 9[ 4 (Doc. No. 1041)). Some 93% of the books are

non-fiction while approxima~.ely 7~ are fic~a.on.3 Both in-print

3 These estimates are basted on studies of the contents of

the libraries involved. (Def. Mem, at 7 (Doc. No. 1.032) (citing

Brian Lavoie and Lorcan Dempsey, Beyond 1.9?_3: Characteristics of

Potentially Tn-Copyright Print Books in Library Collections, 15-

D-Lib 11/12 (2Q09), available at http://www.dlib.org/dl.ib/

november09/lavoie/111avoie.html (last visited November 12,

-4--

MCCCD/Martinez 03424

Case 2:15-cv-01759-NVW Document 73-5 Filed 03/03/17 Page 152 of 178
Case 1:05-cv-08136-DC Documenf 1 Q88 Filed 11/14/13 Page 5 of 30

and out-at-print books are included, although the great majority

are out-af-print. (Jaskiewa.cz Decl, 9[ 4).

In the Partner Program, works are displayed with

permission of the rights holders. (Google Resp. YI 16). The

Partner Program is aimed at helping publishers sell books and

helping books become discovered. (Google Resp. 5[ 18).

Initially, Google~shared revenues from ads with publishers or

other rigYits holders in certain circumstances. In 2011, however,

Google stopped displaying ads in connection with all books.

(Googl.e Rasp. 9I9[ 1.7, 21; Dougall Decl. 9[9[ 5-8 (Doc. No. 1076)) .

Partners provide Goggle with a pr:~nted copy of their books fpr

scanning, or a digital copy if one already exists. (Googl.e Resp.

~[ 19). Partners decide how much of their books -- from a.few 4

sample pages to the entire book --- are browsable. (Google Resp.

9[ 20). As of early 2012, the Partner Program included

approximately 2.5 million books, with the consent of some 45,00

rights holders. (Google Resp. 9I 24). ~

~..

As for the Library Project, Google has scanned more

than twenty million books, in their entirety, using newlydeveloped scanning technology. (Googl.e Resp. y[9[ 28, 29) .

201.3)). The numbers are not disputed. (See 9/23/2013 Tr. at

26) .

-5-

MCCCD/Martinez 03425

Case 2:15-cv-01759-NVW Document 73-5 Filed 03/03/17 Page 153 of 178
Case 1:05-cv-08136-DC Document 1088 Fred 11/14/13 Page 6 of 30

Pursuant ~o their agreement with Google, participating libraries

can download a da.gital copy of each book scanned from their

collections. (Google Resp. 9[ 30). Google has provided digital

copies of millions of these books to the libraries, in accordance

wi~.h these agreements. (Google Resp. 9[ 85). Some libraries

agreed to allow Google to scan only public domain works, while '

others allowed Google to scan in-copyright works as well.

(Google Resp. 9I 36) .

Googl.e creates more than one copy of each book it scans

from the library collections, and it maintains digital rop.i.es of

each book on its serves and back-up tapes. (Google Resp. ~[9[ 40,

41.). Participating libraries have downloaded digital copies of

iri-copyright books scanned from their collections. (Google Resp.

9[9( 53, 54) They may not obtain a .digital copy created from

another library's book. (Jaskiewicz Decl. q[q[ 6, 8). The

libraries agree to abide by the copyright laws with respect to

the copies they make. (Clancy Decl. 9[ 5).

Google did not seek or obtain permission from the

copyright holders to digitally copy or display verbatim

expressions from in-copyright books. (Google Resp. 9[9[ 53, 54).

Google has not compensated copyright holders for ids copying of

ox displaying o~ verbatim expression from in-copyright books or

-6-

MCCCD/Martinez 03426

Case 2:15-cv-01759-NVW Document 73-5 Filed 03/03/17 Page 154 of 178
Case 1:05-cv-Q8136-DC Document 1088 Filed 11/14/13 Page 7 of 30

its making available to libraries for downloading of digital

copies of in-copyright books sr_anned from their collections.

(Google Resp, q[ 55) .

3. Google Books

In scanning books for its Library Project, including

in--copyrights books, Googl.e uses optical character recognition

technology Co generate machine-readable text, compi]_in<~ a digital

copy of each book. (Googly Resp. 9[ 62; P1. Resp. 9[ 1H;

Jaskiewicz Decl. 9[ 3) Google analyzes each scan and creates an

overa]_1 .i_rzdex of all scanned books. The index links each word or

phrase appearing in each book wi~.h all of the locations in all bf

the books in which that word or phrase is found. The index

allows a search for a particular word or phrase to return a

result that includes the most relevant books in which the word or

phrase is found. (Clancy Derl. y[ 6; Pl. Resp. 9f 9[ 22-26) .

Because the full texts of books are digitized, a user can search

the full text of all the books in the Google Books corpus.

(Clancy Decl. 9[ 7; Google Resp. 9I 42) .

Users of Google's search engine may conduct searches,

using queries of their own design. (Pl. F2esp. 9[ 10). In

response to inquiries, Google returns a list o~ books in which

the search term appears. (Clancy Decl. 9[ 8). A user can click

-7-

i

MCCCD/Martinez 03427

Case 2:15-cv-01759-NVW Document 73-5 Filed 03/03/17 Page 155 of 178
Case 1:05-cv-08136-DC Document 1088 Filed 11/14/13 Page 8 of 30

on a particular result to be directed to an "About the Book"

page, which wi11 provide the user with information about the book

in question. The page includes links to sellers of the books

and/or libraries that list the book as part of their collections.

No advertisements have eves appeared on any About the Book page

that is pant of the Library Project. (Clancy Decl. y[ 9).

F'or books in "snippet view" (in contrast to "lu].1 view"

books}, Google divides each page into eighths -- each of which is

~ "snippet," a verbatim excerpt. (Google Resp. 9[y[ 43, 44) EacYi

search generates three snippets, bud by performing mulL- iple

searches using different search terms, a single user may view far

more than three snippets, as da.fferent searches can return

dif~eren~ snippets. (Google Resp. ~[ 45) For example, by making

a series of consecutive, slightly different searches of the book

Ball Four, a single user can view many different snippets from

the book. (Google Resp. 9[9[ 96, 47) .

Google takes security measures to prevent users from

viewing a complete copy of a snippet-view book. For example, a

user cannot cause the system to return different sets of snippets

for the same search query; the position of each snipped is fixed

within the page and does not "slide" around the search term; only

the first responsa.ve snippet available on any given page will be

MCCCD/Martinez 03428

Case 2:15-cv-01759-NVW Document 73-5 Filed 03/03/17 Page 156 of 178
Case 1:05-cv-Q8136-DC Document 1088 filed 11/14/13 Page 9 of 30

returned in response to a query; ane of the snippets on each page

is "black-listed," meaning it wi11 not be shown; and at least one

out of ten entire pages in each book is black-Listed. (Google

Resp. 9[~[ 48-50; P].. Resp. 9[9[ 35, 37-40) . An "attacker" who tries

to ob~.aa.n an entire book by using a physical copy of the book to

string together words appearing in successive passages would be

able to obtain at best a patchwork of snippets that would be

missing at least one snipped from every page and 10n of all

pages. (Pl. Resp. 9[ 41}. In addition, works with text organized

in sho~i~ "chunks," such as dictionaries, cookbooks, and books of

haiku, are excluded from snippet view. (Pl. Resp. 9[ 42).

4. The Benefits of the Library Project

and Google Hooks

The beneCzts of the Library Project are many. Firs ,

Google Books provides a new end efficient way for .readers and

researchers t:a rind books. (See, e.a., Clancy Decl. Ex. G). zt

makes tens o~ millions of books searchable by words and phrases.

It provides a searchable index linking each word in any book to

all books in which that word appears. (Clancy Dec1. 9I 7).

Google Books has become an essential research tool, as it helps

librarians identify and find research sources, it makes the

process of interlibrary lending more efficient, and it

MCCCD/Martinez 03429

Case 2:15-cv-01759-NVW Document 73-5 Filed 03/03/17 Page 157 of 178
Case 1:05-cv-08136-DC Document 1088 Filed 11/14/13 Page 10 of 30

facilitates finding and checking citations. (Br. of I~mici Curiae

American Library Assn et al. at 4-7 (Doc. No. 104$)). Indeed,

Google Boak~ has become such an important tool. for researchers

and librarians that it has been integrated into the educationa].

system -- it is taught as part of the information J.iteracy

curriculum to students at all levels. (Id. at 7).

Second, in addition to ~Eing ~n important reference

tool, Google Books greatly promotes a type of research referred

to as "data mining" or "text mining." (Br. of Digital Humanities

and Law Scholars as Amid Curiae at 1 (Doc. No. 1052}). Google

Books permits humanities scYiolars to analyze massive amounts of

data -- the literary record created by a coZlec~ion of tens of

millions of books. Researchers can examine word frequencies,

syntactic patterns, and thematic markers to consider how literary

style has changed over time. (Id. at 8-9; Clancy Decl. ~[ 15).

Using Google Books, for example, researchers can track the

frequency of references to the United Stakes as a single entity

("the United States is") versus references to the United States

in the plural ("the United States are") and how that usage has

changed over time. (Id. at 7}, The ability to determine how

often different words or phrases appear in books at different

times "can provide insights about fields as diverse as '

-1QMCCCD/Martinez 03430

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lex:i_co<~raphy, the evolution of grammar, collective memory, the

adoption of technology, the pursuit of fame, censorship, and

historical epidemiology." Jean-Baptiste Michel et al.,

Quantitative Analysis o~ Culture Using Millions o~ Digitized

Books, 331 Science 1.76, 176 (2011) (Clancy Decl. Ex. H).

Th_Lrd, Google Books expands access to books° In

particular, traditionally underserved populations will benefit as

they gain knowledge of and access ~o far more books. Goog2e

Books provides print-disabled individuals with the potential to

search i-or books end read them in a format that zs compatible

with text enlargement software,.text-to-speech screen access

so:Etwa.r_e, and Braille devices. Digitization facilitates the

conversion of books to audio and tartil.e Formats, increasing

access for individuals with disabilities. (U tter from Marc

Maurer, President of the National Federation for the Blind, to ~'.

Michael McMahon, Office of the Clerk (Jan. 19, 201.0) (Uoc. No.

858)). Google Books facilitates the identification and access of

maL-erials for remote and underfunded libraries that need to make

efficient decisions as to which resources to procure for their

own collections or through interlibrary loans. (Br. of Amici

Curiae American Library Assn at 5-6).

-17.-

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Fourth, Google Books helps to pxeserve books and give

them new life. Older books, many of which are out-of-print books

that are Lalling apart buried in library stacks, are being

scanned. and saved. See Authors Guild v. Google Inc., 770 F.

Supp. 2d 666, 670 (S.D.N.Y. 2011). These books will now be

available, at least for search, and potential readers will be

alerted to their existence.

Finally, by helping readers and researchers identify

books, Google Books benefits authors and publishers, jnlhen a user

clicks an a search result and is directed to an "About the Book"

page, the page will offer links to sellers of the. book and/or

libraries listing the book as part of their collections. (Clancy

Dec1. 9[ 9). The About the Book page for Ba7.l Four, for example, j

provides .inks to Amazon.com, Barnes&Noble.com, Books-A-Million,

and IndieBound. (See Def.~Mern. at 9). A user could simply click

on any of these links to be directed to a website where she col.i.l.d

purchase the book. Hence, Google Books wi11 generate new

audiences and create new sources of income.

As amiri observe: "Thanks ~o [Google Books],

librarians can identify and efficiently sift through possible

research sources, amateur historians have access to a wealth of

previously obscure material, and everyday readers and researchers

--12-

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c:ari find books that were once buried in research library

archives." (Br. of Amici Curiae American Library Assn at 3y.

B. Procedural History

Plaintiffs commenced this action on September 20, 2005,

alleging, inter alia, that Google committed copyright

infringement by scanning copyrighted books and making them

lvailable £or search without permission of the copyright. holders.

From Lh~ outset, Google's principal defense was fair use under §

107 0~ the Copyright Act, 17 U.S.C. S 107.

After extensive negotiations, the parties entered into

a proposed settlement resolving plaintiffs' claims on a classwide k~asis. On March 22, 2011, I issued an opinion rejecting the

proposed settlement on the grounds that i~ was not fair,

adequate, and reasonable. Authors Guild v.. Google,,,.Inc., 770 F.

Supp. 2d 666 (S.11.N.Y. 2011).

Thereafter, the parties engaged in further settlement

discussions, but they were unable to reach agreement. The

parties proposed and T accepted a schedule that called for the

filing of plaintiffs' class certification motion, the completion

of discovery, and then the filing of summary judgment motions.

(See 9/16/11 Order (Doc. No. 982}). Plaintiffs filed a fourth

amended class action complaint (the "Complaint") on October 14,

-13~

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2011. (Doc. No. 985). While the dates in the schedule were

subsequently extended, the sequence of events was retained, with

the class certification motion to precede the summary judgment

motions, and adding dates for Google's ~ila~ng of a motion to

dismiss the Authors Guild's claims. (See, e.a•, 1/17/12 Order

(Doc. No. 996); 3/28/12 Order (Doc. No. 1007)).

Plaintiffs tiled their class certification motion and

Google filed its motion to dismiss the Authors Guild's claims.

On May 31, 2012, I issued an opinion denying Google's motion to

dismiss and granting the individual plaa.ntiffs' motion for class

certification, Authors Guild v. Google Inc., 28? F.R.n. 384

(S.D.N.Y. 2012).

On June 9, 2012, I. issued an order re-setting the

briefing schedule for the summary judgment motions. (6/19/12

Order_. (Doc. No. 1028)). The parties therea:Eter filed the instant

cross-motions for summary judgment. Before the motions were

fully submitted, however, the Second Circu=i.t i_ssued an order on

September 17, 2012, staying these proceedings pending an

interlocutory appeal by Google from my decision granting class

certification. (9/17/12 Order (Doc. No. 1063)).

Qn July 1, 2013, without deciding the merits of the

appeal, the Second Circuit vacated my class certification

-14--

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decision, concluding that "resolution of Google's fair use

defense in the first instance wil]. necessarily inform and perhaps

moot our analysis of many class certification issues." Authors

Guild, Inc. v. Gooclle Inc., 721 F.3d 132, 134 (2d Cir. 2013).

The Second Circuit remanded the case "for consideration of the

fair use issues." Id. at 135.

On remand, the parties comp.letec~ the brie~inq of the

summaxy judgment motions. I heard oral argument on September 23,

2013. I now rule on the motions.

DISCUSSION

For purposes of these motions, T assume that plaintiffs

have established a prima facie case o~ copyright infringement

against Google under 17 U.S.C. § 106. Sep Feist Pub1'ns, Inc.. v.

Rural Tel.. Serv. Co., 499 U.S. 340, 361 (1991). Google has

digitally reproduced millions of r_opyrighted books, including the

individual plaintiffs' books, maintaining copies for itself on

its servers and backup tapes. See 17 U.S.C. § 106(1)

(prohibiting unauthorized reproduction). Google has made digital

copies avai.labl~ for its Library Project partners to download.

See 17 U.S.C. ~ 106(3) (prohibiting unauthorized distribution).

Google has displayed snippets from the books to the public. See

17 U.S.C. ~ 106(5) (prohibiting unauthorized display). Goog].e

-15-

MCCCD/Martinez 03435

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has done all of this, with respect to in-copyright books in the

Library Project, without license or permission from the copyright

owners. The sole issue now before the Court is whether Gaoglp's

use of the copyrighted works is "fair use" under the copyright

laws. For the reasons set forth below, I conclude that it is.

A. Applicable Law

Fair use is a defense to a claim o.f copyright

inLr.:irigement. The doctrine pexmits the' fair use o~ copyrighted

works "to fulfill copyright's very purpose, [t]o promote the.

Progress of Science and useful Arts. "' Campbell v. Acuff-Rose

Music, Inc., 510 U.S. .569, 575 (1994 (quoting UoS. Const., Art.

I, ~ 8, cl. 8)); accord Cariou v. Prince, 714 F.3d 694, 705 (2d

Cir. 2013). Copyright law seeks to acYiieve that purpose by

providing sufficient protection to authors and inventors to

stimulate creative activity, while at the same time permitting

others to utilize protected. works to advance the progress of the

arts and sciences. See Eldred v. Ashcroft, 537 U.S. 186, 212

(2003); Blanch v. Koons, 467 F.3d 244, 250 (2d Cir. 2006); Han.

Pierre N..~,eval, Toward a Fair. Use Standard, 103 Harv. L. Rev.

1105, 1107-08 (1990). As the Supreme Court h.as held, "[f]rom the

infancy of copyright protect~iorl, some opportunity for fair use of

copyrighted materials has been thought necessary to fulfill

-16-

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copyright's very purpose." Campbell, 510 U.S. at 575; see also

Harper & Row Publishers, Tnc. v. Nation Enters., 471 t7.S. 539,

560 (1985) (recognizing "the latitude for scholarship and comment

traditi.onal.l.y afforded by fair use") .

The fair use doctrine is codified in ~ 107 of the

Copyright Act, which provides in relevant part as follows:

[T]he fair use of a copyrighted work, .

for purposes such as criticism, comment, news

reporting, teaching (including multiple

copies for classroom use), scholarship, or

research, is.no~ an infringement of

copyright. In determa.ning whether the use

made of a work in any particular case is a

fair use the factors to be considered shall

include --

(Z) the purpose and character o~

the use, including whether such use

is of a commercial nature or is for

nonprofit educational purposes;

(2) the nature of the copyrighted

work;

(3) the amount and. substantiality

of the portion used in relation to

the copyrighted work as a whole;

and

(4) the effect of the use upon ttxe

potential market for or value of

the copyrighted work.

17 U.S.C. ~ 107.

The determination of £air use is "an open-ended and

context-sensitive inquiry," Blanch v. Koons, 467 F.3d at 251, and

d~~

MCCCD/Martinez 03437

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thus the fain use doctrine calls for "case-by-case analysis,"

Campbell, 510 U.S. a~ 577; see also Harper & Row, 471 U.S. at

553. The four factors enumerated in the statute are

non-exclusive and provide only "general guidance"; they are ~o be

explored and weighed together, "in light of the purposes of

copyright." Campbell, 510 U.S. at 578-79; Harper & Row, 471 U.S.

at 560-61. As fair use is an affirmative defense to a claim of

copyright infringement, the proponent carries the burden of proof

as to all issues in dispute. Am. Geophysical Union v. Texaco

Inc., 60 F.3d 913, 918 (2d Cir. 1994); see also Campbell, 510

U.S. ~t 590.

key consideration is whether, as part o~ the inquiry

into the first factor, the use of the copyrighted wo.r.k zs

"transforma.t.ive," that is, whether the new work merely

"supersedes" or "supplants" the original creation, or whether it:

_i_nstead adds something new, with 'a further

purpose or different character, altering the

first with new expression, meaning, or

message; it asks, in other words, whether and

Lo what extent the new work is

"transformative."

Campbell, 510 U.S. at 579 (quoting Leval, Toward a Fair Use

Standard, 103 Harv. L. Rev. at 1111); accord Bill Graham Archive

v, vorlinq Kindersley Ltd., 448 F'.3d 605, 608 (2d Cir. 2006)

MCCCD/Martinez 03438

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("Most important to the court's analysis of the first factor is

`transLormative' nature of the work,"); Am. Geophysical Union, 60

F.3d at 923. Although trans~orma~.ive use is not "absolutely

necessary" to a finding of Lair use, "the goal of copyright, to

promote science anti the arts, is generally furthered by the

creation of tra.nsformative work3." Campbell, 510 U.S. at 579.

~. Application

L discuss each of the four factors separately, and I

then weigh them together.

1. Purpose_and Character of Use

The first factor is "the purpose and char.actcr of the

use, inr:tuding whether such use is of a commercial.nature or is

for nonprofit educational purposes." 17 U.S.C. § 107(1).

Coogle's use of the copyrighted works is highly

transform~tive. Google Books digitizes books and transforms

expressive text into a comprehensive word index that helps

readers, scholars, researchers, and others find books. Google

Books has become an important tool for libraries and librarians

and citE-checkers as it helps ~o identify and find books. The

use of book text to facilitate search through the display of

snippets is trarasformative. See Perfect 10, Inc. v. Amazon.com_,

Inc., 50$ F.3d 1146, 1168 (9th Cir. 2007) (holding ~ha~ use of

-19-

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works --- "thumbnail images," including copyrighted

photographs -- to facilitate search was "transformative"); Kelly

v. Arriba Soft Corp., 336 F.3d 811 (9th Cir. 2003) (same); see

also ~3ill Graham Arrhi~res, 448 F.3d at 609-11 (holding that

display of images o~ posters in 480-page cultural history of the

Grateful Dead was trarisformative, explaining that "[w]hile the

sma11 size (off the images of the posters) is sufficient to permit

readers to .r.ecoc~nize the hzstorial significance of the posters,

it is inadequate to offer more than a glimpse of their expressive

value"). The display of snippets of text for search is similar

~o the display of thumbnail images of photographs for search or

small .images of concert posters for reference to past evens, as

the snippets help users locate books and de~crmine whether they

may be o:E interest. Google Books thus uses words for a different

purpose -- it uses snippets of text to ac 1. as pointers directing ,

users to a broad selection of books.

Similarly, Google Books is also ~ransformative a.n the

sense that it has transformed book text info data for purposes o~

substantive research, including data mining and text mining in

new areas, thereby opening up new fields of research. Words in

books are being used in a way they have not been used before.

Google Books has created something new in the use o~ book

-20-

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text -- the frequency of words and trends in their usage provide

substantive .information.

Google Books does not supersede or supplant books

because it is not a fool to be used to read books. Instead, it

"adds value t.o the original" and al.l.ows for "the creation of new

information, new aesthetics, new insights and understandings."

Leval, 'Toward a Fair Use Standard, 103 Harv. L. Rev. ar 111..

Hence, the use is transformative.

It is true, of course, as plaintif:Es argue, that Google

is a for-profit entity and Google Books is largely a commercial

enterprise. The fact that a use is r.,ommerc.ia.l "ends to weigh

against a finding of fair use." Harper & Row, 471 U.S. at 562;

accord Campbell, 510 U.S. at 5$5. On the other hand, fair use

has been found even where a defendant benefitted commercially

from the unlicensed use of copyrighted works. See, e.cr., Blanch,

467 F.3d at 253; Bi11 Graham Archives, 448 F.3d at 612. See also

Castle Rock Entm't, Inc. v. Carol .Publ'q Grp., Inc., 150 Fo3d

132, 142 (2d Cir. 1998) (observing that Second Circuit does "nod

give much weight to Lhe fact that the secondary use was for

commercial gain"). Here, Goog.le does not sell the scans it has

made of books for Google Books; it doEs not sell the snippets

that it displays; and it does not run ads on the About the Book

-21-

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pages l.hat contain snippets. Tt does not engage in the direct

commercialization of copyrighted works. See 17 U.S.C. § 107(1).

Google does, of cou~'se, benefit commercially in the sense that

users are drawn to the Google websites by the ability to search

Gaogle Books. While this is a consideration to be acknowledged

in weighing all the factors, even assuming Goog]~e's principal

mo~.ivai~ion is profit, the fact is that Google Books serves

several impo:r.tant educational purposes.

Accordingly, Y conclude that the first factor strongly

favors a finding of fair use.

2. Nature o£ Copvrighted Works

The second factor is "the nature of the copyrighted

work." 17 U.S.C. ~ 107(2)." Here, the works ar_~ books -- all

types o:E published books, fiction and non-fiction, in-prim and

out-of-print. While works of fiction are enta.tled to greater

copyri.ght ~>rotectiora, Stewart v. Abend, 495 U.S. 207, 237 (1990) ,

here the vast majority of the books in Googl.e Books are

non-f:icl.ion. Further, the books at issue are published and

4 The parties agree that the second factor plays little

role in the ultimate fair use determination. (P1.. Mem. at 36

n.1.8 (Doc. No. 1050}; Def. Mem, at 25). See On Davis v. Gad,

Tnc., 246 F.3d 152, 175 (2d Czr. 2001) ("The second statutory

factor, the nai~ure of the copyrighted work, is rarely found to be

determinative.") (internal citation omitted).

-22-

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available to the public. These considerations favor a finding of

fair use. See Arica Inst. Inc. v. Palmer, 97Q F.2d 1067, 1078

(2d Cir. 1992) ("Whether or nod a work is published is critica].

to its nature under factor_ two because the scope of fair use is

narrower with ~espec~ to unpublished works.") (quoting New Era

Publ'ns Tnter_n., ApS v. Carol Publ'cr Grp., 904 F.2d 152, 157 (2c1 3

Cir. 1990) (internal quotation marks ommitted)).

3. Amount and Substantiality of Portion Used

The third factor is "the amount and substantiality of

the portion used in relation to the copyrighted work as a whole."

17 U.S.C. S 107(3). Google scans the full text of books -- the

entire books -- and it copies verbatim expression. On the other

hand, courts have held that copying the entirety of a work may

sti11. be fair use. See{ e.a•, Sony Corp. of Am. v. Universal

City Studios, Inc., 464 U.S. 417, 419-50 (1984; Bi11. Graham

Archives, 448 F.3d at 613 ("copying the entirety of a work is

sometimes necessary to make a fair use of the image"). HEre, as

one o~ the keys to Google Books is its offering of full--text

search of books, full-work reproduction is critical ~o the

functioning of Google Books. Significantly, Gaogle limits the

amount of text it displays in response to a search.

-23-

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On balance, I conclude that the third factor weighs

slightly against a finding o~ fair use.

4. Effect o~ Use Upon Poter~t.za1 Market or Value

The :F.ourth factor is "the effect of the use upon ~.he

potential market for or value of the copyrighted work." 17

~7.S.C. § 107(4). Here, plaintiffs argue that Google Books will

negatively impact the market for books and that Google's scans

will serve as a "market replacement" for books. (P1. Mem. at

41). It a.lsa argues that users could put in multiple searches,

va.ry~_ng sla.ghtly the search terms, to access an entire book.

(9/23/13 Tr. at 6). .

Neither suggestion makes sense. Google does not sell

its scans, and the scans do not replace the hooks. While partner

libraries have the ability to download a scan of a book from

their collections, they owned the books already -- 'they provided

the original. book to Google to scan. Nor is it likely that

someone would take the time and energy to input countless

searches to try and get enough snippets to comprise an entire

book. Not only is that not possible as ce.rl~ai.n pages and.

snippets . are blacklisted, the individual would have ~o have a

copy of the book in his possession a.l~ead_y to be able to piece

the different snippets together in coherent fashion.

-24-

MCCCD/Martinez 03444

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Case 1:05-cv-08136-DC Document 1Q88 Filed 1 1/14/13 Page 25 of 30

To the contrary, a reasonable factfinder could only

fznd that Google Books enhances the sales of books to the benefit

of copyright holders. An important factor in the success of an

individual title is whether a.t is discovered -- whether potential

readers learn of its existence. (Harris Decl. 9[ 7 (Doc. No.

1039)). Google Books provides a way for authors' works to become

noticed, much like traditional in-store book displays. (~d. at

9[9[ 14-15). Indeed, both librarians and their patrons use Google

Books to identify books to purchase. (Br. of Amici Curiae

American 2~ibrary Assn a~ 8}. Many authors have noted that

online browsing in general and Google Books in particular helps

readers f.~nd their work, thus increasing their audiences..

Further, G~ogle provides convenient links to booksellers to make

it easy far a reader to order a book. In this day and age of

on-line shopping, there can be no doubt but that Google Books

improves books sales.

FIence, I conclude that the fourth Factor weighs

strongly in favor of a finding of fair use.

5. Overall Assessment

E'inally, the various non-exclusive statutory factors

are to be weighed together, along with arty other relevant

considerations, in light of the purposes of the copyright laws.

-25-

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zn my view, Google Books provides significant public

benefits. St advances the progress of the arts and sciences,

while maintaining respectful consideration for the rights off'

authors ar~d other creative individuals, and without adversely

impacting the rights of copyright holders. It has become an

invaluable research tool. that permits students, teachers,

librarians, and others to more Pffirieni~ly identify and locate

books. It has given scholars the ability, for the first fi.ime, to

conduct full-text searches of tens o~ millions of books. I~ .

preserves books, in particular out-off-print and old books that

have been forgotten in the bowels at :Libraries, and it gives them

new life. It facilitates access to books for print-disabled and

remote or underserved populations: It generates new audiences

and creates new sources of income for authors and publisherso

Indeed, all society benefits.

Similarly, Google is entitled to summary judgment wi~.h

t ...

respect to plaintiffs' c.lai_ms based on the copies of scanned

books made available to libraries. Even assuming plaintiffs have

demonstrated a prima facie case of copyright infringement,

Google's actions constitute fair use here as well. Google

provides the libraries with the technological means to make

da.gital copies of books that they already own. The purpose of

-2 6--

MCCCD/Mart►nez 03446 '

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the library copies is to advance the libraries' lawful uses of

the digitized books consistent with the copyright law. The

libraries then use these digital copies in transformative ways.

They c:.rcat~ their own full-text searchable indices o~ books,

maa.ntain copies for purposes of preservation, and make copies

available to print-disabled individuals, expanding access ~

for them in unprecedented ways. Google's actions in providing

the libraries with the ability to engage in activities that

advance the arts and sciences constitute fair use.

To the extent plaintiffs are asserting a theory of

secondary liabili~:y against Google, the theory fa.i_].s because the

libraries' ar.~.ions are protected by the fair use doctrine.

Indeed, in the HathiTrust rase, Judge Baer held that the

libraries' conduct was fair use. See Authors Guild Tnc. v

HathiTzust, 902 F. Supp. 2d 445, 460M61, 464 (S.D.N.Y. 2012) ("I

cannot imagine a definition of fair use that would not encompass

the transformative uses made by Defendants' [Mass Digitization

Pro~ec~j and would require ghat I terminate tYiis invaluable

contribution to the progress of sc_~encc and cultivation of the

arts .hat at the same dime effectuates the ideals espoused by the

[Americans with Disabilities Act]."). The fair use analysis set

-27- 

_

MCCCD/Martinez 03447

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forth above with respect to Googl.e Books app~.ies here ae well to

the libraries' uee of ~heix- scans, and if there is no liability

fox copyright i,nfringemen~ on the Yibraries' park, there can be

no liability an Goog].e's part.

CONCLIISION

Far the reasons yet Earth above, plaintiffs' mption for

paxL~.a~ summary judgment is denied and Goagle's matign fog

summary judgment is granCed. Judgment wi7.l be entered in favor

a~ Goog:Le dismis~a.ng the Comp7.aint, Google shall submit a

proposed judgment., on notice, within five business days hereof.

SQ ORDERED.

Dated: Novembex 14, 2013

New York, New Y'orlt

-Zat

DENNY CHIN

CJni~ed 5~ates ~ircui~ Judge

Sitting By Designat~.on

s

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APPEAEtANCES

For Plainti:Lfs:

BONI & ZACK LLC

By: Michael J. Boni, Esq,

soshua D. Snyder, Esq.

John E. Sindoni, Esq.

Z5 St. Asaphs Road

Bala Cynwyd, PA 19004

FRANKFURT KCJRNTT KLEIN & SELZ P.C.

By: Edward H. Rosenthal, Esq.

Jeremy S. Goldman, Esq.

4$8 Madison Avenue

New York, NY 10022

MILBERG LLP

By: Sanford P. Dumain, Esq.

1 Pennsylvania Flaza

New York, NY 10119

For Defendant Google, Inc.

DURIE TANGRI LLP

By': Daralyn J. Durie, Esq.

Joseph C. Gratz, Esq.

David McGowan, Esq.

Genevieve P. Roslotf, Esq.

217 Leidesdorff Street

San Francisco, CA 94111

-29-

IVICCCD/Martinez 03449

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Case 1:05-cv-08136-DC Document 1088 Filed 11/14/13 Page 3Q of 30

For Am;iCus Curiae Digital

Humanities and Law Scholars:

SAMUELSON LAW, TECHNOLOGX & PUBLIC POLICX CLINIC

By: Jennifer M. Urban, Esq.

Sabak Siavosxiy, Esq.

Jason Schultz, Esq.

Univex'sity of California, Berkeley,

Schoo]. of Law

396 Simon Hall

Berkeley, CA 94720

- and

Matthew Sag, Esq.

Loyola iJniversity o~ Chi.cago School of Law

25 East Pearson Street

Chicago, IL 60611

~'~r Amicus Curiae Amerzcan Library

Association, Association of

College and Research Libraries,

Assor.i_aL:i_on of Research Libraries,

and Electronic Frontier Foundation:

JONATHAN BAND PLLC

By: Jonathan Band, Esq.

21 Dupont Circle, NW

Washington, DC 20036

-30-

MCCCD/Martinez 03450

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