Fuentes v. Santa Cruz, County of

• Court: District Court, D. Arizona
• Decided: January 19, 2024
• Docket: 4:21-cv-00220
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Ruben F Fuentes, et al., No. CV-21-00220-TUC-JGZ

10 Plaintiffs, Order Re: Summary Judgment

11 v.

12 County of Santa Cruz, et al.,

13 Defendants. 14 15 16 In the pending action, Plaintiff Ruben Fuentes alleges Defendants Santa Cruz 17 County and Sheriff David Hathaway violated Fuentes’s due process rights by “illegally” 18 terminating him “without good cause” and denying him “an opportunity to be heard” at a 19 “pre-termination meeting or hearing.” (Doc. 1 ¶¶ 17–22; Doc. 57 at 2–3.) On June 7, 20 2023, this action was transferred to the undersigned for trial. (Doc. 51.) Before transfer, 21 all claims except the due process claim had been dismissed on summary judgment. (Doc. 22 47.) 23 Upon transfer and review of the record, the undersigned called for further briefing 24 and response to Defendants’ argument on summary judgment that, assuming Fuentes was 25 a merit-protected employee, he received all the due process to which he was entitled. (Doc. 26 53.) The parties provided additional briefing and the Court heard oral argument on 27 September 21, 2023. (Doc. 64.) Having now considered the parties’ briefing on summary 28 judgment (Docs. 40, 44, and 46), supplemental briefing (Docs. 55, 60, and 62), and 1 arguments, the Court will grant summary judgment in favor of Defendants on Plaintiff’s 2 due process claim, and vacate the trial currently set for March 4, 2023. 3 I. Summary Judgment Standard 4 A court must grant summary judgment “if the movant shows that there is no genuine 5 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” 6 Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). 7 “Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery 8 and upon motion, against a party who fails to make a showing sufficient to establish the 9 existence of an element essential to that party’s case, and on which that party will bear the 10 burden of proof at trial.” Celotex, 477 U.S. at 322. The movant bears the initial 11 responsibility of presenting the basis for its motion and identifying those portions of the 12 record, together with affidavits, if any, that it believes demonstrate the absence of a genuine 13 issue of material fact. Id. at 323. 14 When the moving party has carried its burden under Rule 56, “its opponent must do 15 more than simply show that there is some metaphysical doubt as to the material facts.” 16 Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). “The 17 mere existence of a scintilla of evidence in support of the plaintiff’s position will be 18 insufficient; there must be evidence on which the jury could reasonably find for the 19 plaintiff.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). In other words, 20 “there is no issue for trial unless there is sufficient evidence favoring the nonmoving party 21 for a jury to return a verdict for that party.” Id. at 249. 22 At summary judgment, the judge’s function is not to weigh the evidence and determine the 23 truth but to determine whether there is a genuine issue for trial. Id. In its analysis, the 24 court must believe the nonmovant’s evidence and draw all inferences in the nonmovant’s 25 favor. Id. at 255. The court need only consider the cited materials, but it may consider any 26 other materials in the record. Fed. R. Civ. P. 56(c)(3). Accepting Fuentes’s factual 27 allegations as true, the Court concludes that Defendants are entitled to judgment as a matter 28 of law. 1 II. Undisputed Facts1 2 From January 1, 1993 to December 31, 2020, Sheriff Marco Antonio Estrada was 3 the elected Santa Cruz County Sheriff. (Doc. 57 at 3.) An Arizona County Sheriff has the 4 ultimate, unilateral authority to hire and fire personnel working for the Sheriff’s Office. 5 (Id.) 6 From January 1, 1993 to December 15, 2006, the Santa Cruz County Sheriff had a 7 Chief Deputy which was a position filled by Major Ramon Romo. (Id.) At that time, the 8 command staff hierarchy at the Santa Cruz County Sheriff’s Office was the Sheriff, 9 followed by the Chief Deputy who was supervised by the Sheriff, and then Sheriff’s 10 Lieutenants who were supervised by the Chief Deputy. (Id.) The Chief Deputy was the 11 second-in-command at the Santa Cruz County Sheriff’s Office and was considered an “at- 12 will” employee, meaning he could be dismissed at any time, with or without cause, and 13 with no right to due process or appeal to the County’s Merit System Commission 14 (“Commission”). (Id.) 15 Romo entered the Deferred Retirement Option Plan (“DROP”) program, which 16 forced his retirement as a sworn law enforcement officer under penalty of losing significant 17 financial benefits. (Id. at 4.) The forced retirement meant that Romo could no longer work, 18 or be rehired, as a sworn peace officer. (Id.) As a result of Romo’s DROP retirement, 19 then-Sheriff Estrada sought to eliminate the Chief Deputy position and re-hire Romo in a 20 civilian position. (Id.) 21 On December 13, 2006, the Santa Cruz County Board of Supervisors, in a public 22 meeting, was notified by then-Personnel Director/Deputy County Manager Carlos Rivera 23 that Chief Deputy Romo had filed for the DROP approximately five years prior and, as a 24 consequence, was required to retire or lose a significant amount of money. (Id.) The Board 25 of Supervisors was also informed by Rivera that Sheriff Estrada had requested the 26 elimination of the Chief Deputy position effective December 15, 2006, and the creation of

27 1The facts are taken from the “Stipulations and Uncontested Facts” section of the 28 parties’ Amended Joint Proposed Pretrial Order (Doc. 57) and the parties’ filings in support of and opposition to Defendants’ motion for summary judgment (Doc. 41; Doc. 45). 1 a civilian Sheriff’s Executive Assistant position that would handle all administrative 2 functions of the Sheriff’s Office. (Id.) At the Sheriff’s request, the Board of Supervisors 3 eliminated the Chief Deputy position and created a Sheriff’s Executive Assistant position, 4 which Romo was hired to fill. (Id.) After the elimination of the Chief Deputy position, the 5 Sheriff’s Office hierarchy changed to the Sheriff directly supervising all Lieutenants. The 6 Chief Deputy position was never restored during Sheriff Estrada’s tenure. (Id.) 7 After the Chief Deputy position was eliminated, Sheriff Estrada asked the Board of 8 Supervisors to approve a Captain position. (Id.) On January 17, 2007, in a public meeting 9 of the Board of Supervisors, Rivera reported a “personnel reorganization” at the Sheriff’s 10 Office based on the Chief Deputy’s retirement under the Public Safety Personnel 11 Retirement system, resulting in the need to promote one of the four Sheriff’s Lieutenants 12 to the position of Captain. (Id.) The Board of Supervisors approved the creation of the 13 Captain position. (Id. at 5.) 14 On February 5, 2007, then-Executive Assistant Romo delivered a memorandum 15 regarding the Captain position to then-Lieutenant Fuentes, which advised that the Board of 16 Supervisors had authorized Sheriff Estrada to create a new Captain position “that performs 17 administrative and management work” in the uniformed Metro and Detention Divisions of 18 the Sheriff’s Office and “[m]ay act as ‘Captain in Charge’ in the absence of the Sheriff or 19 as delegated.” (Id.) On April 23, 2007, an outside vendor delivered to Romo materials for 20 use in the selection of the Sheriff’s Captain. (Id.) 21 In May 2007, the Board of Supervisors promulgated a revised version of the Santa 22 Cruz County Personnel Policy (“Personnel Policy”), which specifically exempted from the 23 Discipline, Grievance, and Appeals processes, the Sheriff’s single “Chief Deputy or 24 Associate who is designated either by statute or the Elected Official to act for and perform 25 duties of such elected official.” (Id.; Doc. 31-1.) 26 On May 4, 2007, Fuentes was notified that he was being promoted to the rank of 27 28 1 Captain and that his immediate supervisor would be Sheriff Estrada.2 (Doc. 57 at 4.) 2 On September 19, 2013, Sheriff Estrada promulgated his Sheriff’s Office Policy 3 Manual which, among other things, provided that “[t]he Sheriff exercises command over 4 all personnel in the Office. During planned absences, the Chief Deputy or Captain shall 5 act with the authority of the Sheriff.” (Id. at 6.) At that time, there was no Chief Deputy. 6 (Id.) 7 On November 4, 2020, David Hathaway won the general election for Sheriff of 8 Santa Cruz County. (Id.) Before being sworn into the Office of Sheriff, Hathaway had 9 decided he wanted to designate a new second-in-command, which would involve 10 dismissing Fuentes from the Captain position. (Id.) 11 On January 4, 2021, Hathaway met with the command staff which included Fuentes 12 and two lieutenants. (Doc. 41 ¶ 36; Doc. 45 ¶ 36.) At the meeting, Hathaway gave Fuentes 13 a letter of dismissal and explained that the Sheriff had the authority to designate his own 14 “second-in-command,” that he had conferred with the County Manager and Human 15 Resources who advised Fuentes’s position was “at-will,” and that Fuentes was not being 16 terminated for cause. (Doc. 57 at 6.) Hathaway also thanked Fuentes for his service to the 17 County. (Doc. 57; Doc. 41 ¶ 39; Doc. 45 ¶ 39.) The letter stated that questions about the 18 termination could be directed to Hathaway or the Human Resources Director (“HR 19 Director”). (Doc. 45 ¶ 83.) 20 At the meeting, Fuentes questioned whether he was an at-will employee, and Sheriff 21 Hathaway immediately offered to arrange for Fuentes to meet with the County Manager 22 and the HR Director. (Doc. 41 ¶ 40; Doc. 45 ¶ 40.3) Fuentes agreed to meet, and Hathaway 23

24 2It is unknown whether the May 2007 modifications to the Personnel Policy occurred before or after Fuentes’s May 4, 2007 promotion. 25 3Fuentes’s partial objections to ¶¶ 40, 41 and 43 of Defendants’ Statement of Facts 26 do not create an issue of fact. Fuentes’s testimony establishes that Hathaway offered to set up a meeting with the County Manager and the HR Director in response to Fuentes 27 questioning whether he was an at-will employee. (Doc. 41-2 at 26.) Fuentes’s subjective 28 belief that Hathaway offered the meeting solely for the purpose of having the county officials reiterate their position that the Captain position was “at-will” or that the county 1 arranged the meeting for a date prior to Fuentes’s January 8 termination date. (Doc. 41-2 2 at 27.) Fuentes later told Hathaway he did not want to meet with the county officials, and 3 he did not attend the meeting that had been scheduled. (Doc. 41 ¶ 43; Doc. 41-2 at 29–30; 4 Doc. 45 ¶ 43.4) 5 At the time of his termination, Fuentes knew that if he was a merit-protected 6 employee, he could appeal his dismissal to the Commission. (Doc. 57 at 6.) 7 Fuentes continued to fulfill his duties as Captain and communicate with the Sheriff 8 on various issues until his January 8 effective dismissal date. (Id.) After Fuentes’s 9 departure, the Captain position was reclassified by the Board of Supervisors as a Chief 10 Deputy position with an “at-will” status. (Id.) 11 Chapter 13 of the Personnel Policy (Doc. 31-1) provides that merit-protected 12 employees have the right to appeal dismissals, suspensions, and demotions to the 13 Commission. (Ch. 13.01.) The Commission consists of five members who are appointed 14 by the Board of Supervisors but are separate and independent of County Government. (Ch. 15 13.02.) Such an appeal may be brought by a classified permanent employee within ten 16 calendar days from the date of receipt of written notice to action taken. (Ch. 13.03.) As 17 part of the hearing, the employee’s personnel records are provided to Commission 18 members for review. (Ch. 13.03(F).) The employee may appear personally and may also 19 appear with legal counsel. (Ch. 13.03(G).) The employee, or counsel, has the right to 20 produce all evidence relevant to the appeal, cross-examine witnesses, and testify on his or 21 officials would reach the same conclusion does not alter the fact that Fuentes was provided 22 an opportunity to be heard regarding his status. 4Fuentes partially objects to ¶ 43, on the ground that “the cited transcript from the 23 deposition of Fuentes is unreadable due to transcription errors.” (Doc. 45 ¶ 43.) This 24 objection does not create a material issue of fact. First, the transcript is not unreadable. (Doc. 41-2 at 88.) The cited portions clearly show Fuentes told Hathaway he did not want 25 to participate in the meeting. (Doc. 41-2 at 29:21–23.) Second, Fuentes need not rely on 26 the transcript of his own deposition to respond to the Defendants’ assertion that Fuentes could have presented his position at a meeting with county officials. Third, Fuentes’s 27 subjective belief that the officials would not reach a different conclusion if there was a 28 meeting does not negate the fact that he could have presented his position at the meeting. 1 her own behalf. (Id.) An official record of the proceedings, including recordings of all 2 hearings and testimony, and all exhibits, is prepared. (Ch. 13.03(H).) The Commission 3 can reverse the discipline imposed, reduce punishment in certain circumstances, reinstate, 4 and provide full back pay. (Ch. 13.03(I).) The Commission’s decision must be by majority 5 vote and must include specific findings as to the charges and punishment. (Ch. 13.03 (I), 6 (J).) The Commission’s findings are subject to judicial review pursuant to Title 12, Chapter 7 7, Article 6 of the Arizona Revised Statutes. (Ch. 13.03 (K).) As of the time of Fuentes’s 8 dismissal, the Arizona Superior Court for Santa Cruz County had ruled that the 9 Commission decides its own jurisdiction in cases where there is a dispute over whether the 10 employee’s status is classified permanent or “at-will.” (Doc. 57 at 7.) 11 III. Discussion 12 The Due Process Clause of the Fourteenth Amendment “provides that certain 13 substantive rights—life, liberty, and property—cannot be deprived except pursuant to 14 constitutionally adequate procedures.” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 15 532, 541 (1985). The Due Process analysis requires two steps: first, a court must determine 16 whether the plaintiff had a protected property interest in his continued employment; 17 second, a court must determine whether, in being deprived of that property interest, the 18 plaintiff received all the process that was due. Clements v. Airport Auth. of Washoe Cnty., 19 69 F.3d 321, 331 (9th Cir. 1995). 20 Although the parties stipulate to the facts, the parties dispute whether those facts 21 establish that Fuentes was an at-will employee or a merit-protected employee. As a merit- 22 protected employee, Fuentes would have a protected property interest in his continued 23 employment. As an at-will employee, he would not, and his claim would fail. For purposes 24 of summary judgment, the Court must accept as true Fuentes’s assertion that he was a 25 merit-protected employee when he was terminated. Thus, the sole remaining issue to be 26 determined is whether, in being deprived of his property interest in his continued 27 employment, Fuentes received all the process that was due. See Clements, 69 F.3d at 331. 28 For the reasons that follow, the Court concludes as a matter of law that Fuentes did receive 1 all the process that he was due and, based on the undisputed evidence, no jury could 2 reasonably find in favor of Fuentes. 3 A. Pre-Termination Due Process 4 A public employee who can only be terminated for cause is entitled to a pre- 5 termination “hearing” of some kind, Loudermill, 470 U.S. at 545, and though it “need not 6 be elaborate,” the pre-termination hearing “must be afforded the employee prior to 7 termination,” Clements, 69 F.3d at 331–32. “The essential requirements of this pre- 8 termination process are notice and an opportunity to respond.” Id. at 332. This is because 9 a pre-termination hearing “should be an initial check against mistaken decisions— 10 essentially, a determination of whether there are reasonable grounds to believe that the 11 charges against the employee are true and support the proposed action.” Loudermill, 470 12 U.S. at 545–46 (citing Bell v. Burson, 402 U.S. 535 (1971)). 13 The record shows that Fuentes was afforded notice and an opportunity to respond 14 prior to the effective date of his termination. At the January 4, 2021 meeting, Sheriff 15 Hathaway gave Fuentes a written notice of dismissal and told Fuentes that the County 16 Manager and HR Director had advised that Fuentes’s position was at-will and Fuentes was 17 not being terminated for cause. When Fuentes questioned whether he was at-will, 18 Hathaway offered to arrange for Fuentes to meet with the County Manager and HR 19 Director. Hathaway then arranged for a meeting for a date prior to Fuentes’s January 8 20 termination date. Fuentes later elected not to attend the meeting. Thus, there is no genuine 21 dispute that Fuentes was provided notice of his termination at the January 4 meeting and 22 that he was given a pre-termination opportunity to be heard regarding his classification as 23 an at-will employee and, therefore, his termination. 24 Fuentes argues that the offer of a meeting with county officials was insufficient to 25 satisfy due process because he was not provided “an opportunity to be heard by the final 26 decisionmaker,” who was Hathaway. (Doc. 55 at 4.) A meeting with the final 27 decisionmaker, however, is not required to satisfy due process. See Los Angeles Police 28 Protective League v. Gates, 907 F.2d 879, 891–92 (9th Cir. 1990). In Gates, the Ninth 1 Circuit concluded there was no due process violation when the plaintiff was given a 2 meeting with his commanding officer, but not the police chief, before being suspended 3 from duty. Id. at 891–92. The court found the Sixth Circuit’s construction of Loudermill, 4 470 U.S. at 546, on remand, persuasive and agreed with the Sixth Circuit’s conclusion that 5 “[w]hile it might be tempting to make this test harder and require that a meeting be with 6 the one actually empowered with the authority to fire, the courts have not construed 7 procedural due process to merit such a requirement.” Id. at 891 (quoting Loudermill v. 8 Cleveland Bd. of Educ., 844 F.2d 304, 311 (6th Cir. 1988)). The Ninth Circuit stated that 9 requiring a meeting with the final decisionmaker “would require that the head of a 10 department, no matter how large that department was, [to] be forced to meet with every 11 employee who was to be subjected to discipline. That might be a nice luxury, and it might 12 even work if this were the best of all possible worlds. It may even be a desideratum. It is 13 not, however, a constitutional imperative.” Id. 14 Fuentes also argues that the opportunity to raise his employment dispute before the 15 County Manager and HR Director was insufficient to satisfy the requirements of due 16 process because the county officials were biased, and the chance of a different result was 17 “futile.” (Doc. 44 at 11; Doc. 55 at 8.) Fuentes reasons that the county officials were “the 18 very same people who crafted the letter purporting to terminate Fuentes’s employment and 19 informing he was ‘at will.’” (Id.) However, Fuentes’s suggestion that a pre-termination 20 opportunity to be heard must be conducted by uninvolved or disinterested decisionmakers 21 is not supported by law. 5 Because a “pre-termination hearing involves only notice and an 22 opportunity to respond, and does not constitute an ‘adjudication,’” “the decisionmaker in 23 a pre-termination hearing need not be impartial, so long as an impartial decisionmaker is 24 provided at the post-termination hearing.” Clements, 69 F.3d at 333, n.15 (citing Walker 25

26 5The fact that the Sheriff consulted with the County Manager and HR Director as part of his decision-making does not, in and of itself, warrant the conclusion that the County 27 Manager and HR Director are biased. Fuentes offers no evidence of actual or potential 28 bias, such as evidence of a pecuniary interest in the proceeding, personal animosity toward the plaintiff, or improper prejudgment of his claim. 1 v. City of Berkeley, 951 F.2d 182, 184 (9th Cir. 1991)). As discussed below, Fuentes had 2 the opportunity post-termination to appeal to the Commission, which is staffed by impartial 3 decisionmakers, and for further appeal of a decision by the Commission to the superior 4 court. Thus, Fuentes’s opportunity to meet with county officials was sufficient pre- 5 termination process. Such a meeting would have provided an initial check against a 6 mistaken decision as to the classification of Fuentes’s position and the decision to terminate 7 him.6 8 B. Post-Termination Due Process 9 “Although the denial of a pre-termination hearing is a constitutional violation 10 sufficient to support damages, [the Court] must also independently assess the adequacy of 11 the post-termination proceedings.” Clements, 69 F.3d at 332. “[T]he required extent of 12 post-termination procedures is inextricably intertwined with the scope of pre-termination 13 procedures, Carter v. W. Reserve Psychiatric Habilitation Ctr., 767 F.2d 270, 273 (6th Cir. 14 1985), and “the inadequacy of post-termination process may itself be the source of a 15 distinct due process violation,” Clements, 69 F.3d at 332. When the pre-termination 16 hearing is abbreviated, the post-termination hearing must be “substantially more 17 meaningful.” Rodgers v. 36th Dist. Court, 529 Fed. Appx. 642, 649 (6th Cir. 2013) 18 (internal citation omitted). “At a minimum, this requires that the discharged employee be 19 permitted to attend the hearing, to have the assistance of counsel, to call witnesses and 20 produce evidence on his own behalf, and to know and have an opportunity to challenge the 21 evidence against him.” Carter, 767 F.2d at 273. “Where there is a system of post- 22 termination procedures available to the employee that includes a neutral decisionmaker 23 and/or arbitration, coupled with a pretermination ‘right of reply’ hearing, then the 24 6In light of the fullness of Santa Cruz County’s post-termination procedures, the 25 meeting with Hathaway on January 4 may have also constituted a sufficient pre-termination 26 opportunity to be heard. See Montgomery v. City of Ardmore, 365 F.3d 926, 937 (10th Cir. 2004); see also Powell v. Mikulecky, 891 F.2d 1454, 1460 (10th Cir. 1989) (noting three 27 other circuit courts had interpreted Loudermill to permit abbreviated pretermination 28 hearings, including brief face-to-face meetings). 1 employee has received all the process due under the Constitution.” Rodgers, 529 Fed. 2 Appx. at 649 (quoting Farhat v. Jopke, 370 F.3d 580, 596 (6th Cir. 2004)). 3 The County’s post-termination appeal process, outlined in Chapter 13 of the 4 Personnel Policy, provides for a full post-termination hearing that comports with the 5 requirements of due process. Under the County policy, an employee has the opportunity 6 to attend a hearing conducted by a neutral decisionmaker (the Commission), have the 7 assistance of counsel, call witnesses, produce evidence, and challenge the evidence against 8 him. (Doc. 31-1 at 82–84.) Fuentes testified at his deposition that he knew about the 9 process, but he did not use it. Yet, if he had, he could have been heard by the Commission, 10 had the assistance of counsel, called witnesses, offered evidence as to the proper 11 classification of his position, and challenged the County’s evidence as to his position. 12 Because this full post-termination hearing was available to Fuentes, and because pre- 13 termination notice and a right of reply hearing with the County Manager and HR Director 14 were provided to him, Fuentes received all the process due to him under the Constitution. 15 See Rodgers, 529 Fed. Appx. at 649. 16 Fuentes argues he was not required to attempt to use the County’s appeal process 17 because Defendants “specifically” and “repeatedly” told him that he was an at-will 18 employee and was not entitled to an appeal, so it would have been futile for him to try to 19 use the process. (Doc. 55 at 5–7; Doc. 62 at 6.) Importantly, Fuentes provides no evidence 20 that anyone told him that he did not have access to the appeal process or that he had no 21 appeal rights. The undisputed facts establish that the parties disagreed as to whether 22 Fuentes’s position was protected; under County policy, employees in protected positions 23 can appeal adverse employment decisions to the Merit Commission7; Fuentes thought his 24 7Fuentes does not suggest that the Commission would have adjudicated his appeal 25 in bad faith, dishonestly, or without integrity. See Head v. Chicago Sch. Reform Bd. of 26 Trustees, 225 F.3d 794, 804 (7th Cir. 2000) (“Those serving as adjudicators are presumed to act in good faith, honestly, and with integrity. To overcome this presumption, a plaintiff 27 must come forward with substantial evidence of actual or potential bias, such as evidence 28 of a pecuniary interest in the proceeding, personal animosity toward the plaintiff, or actual prejudgment of the plaintiff’s case.” (internal citation omitted)). 1 position was merit-protected; he knew that if he was a merit-protected employee, he could 2 appeal his termination to the Commission; and he chose not to do so. Fuentes did not lose 3 access to the appeal process when (or because) officials told him he was an at-will 4 employee. Fuentes clearly disputed that classification, believed that he was merit-protected 5 and knew that merit-protected employees had appeal rights through the Commission. See 6 Krentz v. Robertson, 228 F.3d 897, 904 (8th Cir. 2000) (summarizing circuit case law 7 holding that employees waive procedural due process claims when they are aware of 8 available administrative procedures, yet fail to pursue relief under the procedures); see also 9 Booker v. City of Saint Paul, 762 F.3d 730, 736–37 (8th Cir. 2014) (concluding the state 10 does not violate due process requirements “when it has made procedural protection 11 available and the plaintiff has simply refused to avail himself of [the procedures]” (cleaned 12 up)). 13 C. Reclassification of Fuentes’s Position 14 Recognizing that his due process claim fails if his position was at-will, Fuentes 15 claims that the deprivation at issue in this lawsuit resulted from the County’s 16 reclassification of his position from merit-protected to at-will. Fuentes asserts that there is 17 a genuine dispute of material fact as to whether the County violated his procedural due 18 process rights when it unilaterally stripped him of his protected status, without notice or 19 authority, and redesignated him as “at-will” and terminated him, thereby depriving him of 20 access to the procedural framework only protected employees enjoy. (Doc. 55 at 7; Doc. 21 62 at 3–4.) This claim, however, is not a claim that has been pursued in this litigation. The 22 claim is not included in the parties’ Amended Joint Proposed Pretrial Order (Doc. 57), in 23 which Fuentes describes “Plaintiff’s Claim” only as termination of employment without 24 adequate pre-termination procedural protections, or alternatively, adequate post- 25 termination procedural protections. (Id. at 2-3.) It is too late to amend his claim now. See 26 Hartzell v. Marana Unified Sch. Dist., CV-21-00062-TUC-SHR, 2023 WL 4707064, at *4 27 (D. Ariz. July 24, 2023) (disallowing amendment to due process claim when plaintiff made 28 no indication in joint proposed pretrial order that she would seek to amend her claim and 1 || where case was ready for trial); Kimble v. Marvel Enterprises, Inc., CV 08-372-TUC-DCB, 2010 WL 11515207, at *3 (D. Ariz. Apr. 8, 2010) (finding prejudice because granting leave 3 || to amend would involve another wave of discovery and dispositive motions). 4 IV. Conclusion 5 For the foregoing reasons, the Court concludes Defendants are entitled to judgment 6|| as a matter of law. The record shows that pre-termination, Fuentes was given oral and || written notice of his termination, an explanation for the decision to terminate him, and an 8 || opportunity to be heard regarding his disagreement with the basis for the decision. The □□ record also shows that Fuentes knew about the post-termination appeal process in the 10 || Personnel Policy and that the post-termination appeal process was sufficient to satisfy due 11 || process. 12 Accordingly, 13 IT IS ORDERED: 14 (1) Granting summary judgment in favor of Defendants. 15 (2) The jury trial presently set for March 4, 2024 and all related deadlines are 16 vacated. 17 (3) The Clerk of Court shall enter judgment in favor of Defendants and close this 18 case. 19 Dated this 18th day of January, 2024. 20 21 □ 22 /, Jennifer G. Zi 23 United States District Judge 24 25 26 27 28

-13-