Unpublished Disposition, 852 F.2d 572 (9th Cir. 1988)

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US Court of Appeals for the Ninth Circuit - 852 F.2d 572 (9th Cir. 1988)

B.M.C. SETTY, Plaintiff-Appellant,v.STATE BOARD OF HIGHER EDUCATION, Oregon Institute ofTechnology, John Yarbrough, Dr. William Smith, Dr.Larry Blake, and John Lund, Defendants- Appellees.

No. 87-3578.

United States Court of Appeals, Ninth Circuit.

Submitted June 9, 1988.Decided July 5, 1988.* 

Portland, Oregon

Before HUG, FLETCHER, and NELSON, Circuit Judges.


Setty alleges that the denial of a pre-termination hearing when the Oregon Institute of Technology ("OIT") failed to renew his annual teaching contract violated his due process rights. Setty also claims that he was wrongfully terminated because he complained about discriminatory treatment against him, discrimination that allegedly occurred because of his race or national origin. The court below determined that Setty possessed no property interest in his annual teaching contract at OIT and that OIT did not discriminate against him. We affirm.

DISCUSSION

I. Standard of Review.

An appeals court treats an appeal from a magistrate's decision like an appeal from the judgment of a district court. Reimers v. Oregon, No. 86-4366, slip op. at 5399, n. 1 (9th Cir. May 13, 1988). This court reviews the district court's interpretation of state and federal law de novo. Physicians' Serv. Med. Group v. San Bernardino County, 825 F.2d 1404, 1407 (9th Cir. 1987); Loehr v. Ventura Community College Dist., 743 F.2d 1310, 1313 (9th Cir. 1984). We reverse the trial court's factual findings for clear error. Penk v. Oregon State Bd. of Higher Educ., 816 F.2d 458, 461 (9th Cir.) cert. denied, 108 S. Ct. 158 (1987). Whether Setty had a protected property right in his employment is reviewed de novo. Merritt v. Mackey, 827 F.2d 1368, 1370 (9th Cir. 1987).

II. Setty's Property Interest in the Employment Contract

Setty errs in believing that he is entitled to a hearing. "A person's interest in a benefit is a 'property' interest for due process purposes if there are such rules or mutually explicit understandings that support his claim of entitlement to the benefit and that he may invoke at a hearing." Perry v. Sinderman, 408 U.S. 593, 601 (1972). Here there exists no evidence of an agreement or shared understanding that Setty's employment would continue beyond the designated terms of the contract. Setty understood the nature of the fixed-term employment contract, and he understood OIT's tenure provisions, including the fact that he was not hired with an expectation of tenure. See Loehr, 743 F.2d at 1314 ("the importance of a contract as a source of a property interest lies not in the mere existence of some agreement, but in its terms.")

Setty possesses no protected property interest in the renewal of his contract under Oregon law. See Papadopoulos v. Oregon State Bd. of Higher Educ., 511 P.2d 854 (Or.1973), cert. denied, 417 U.S. 919 (1974). Oregon laws provide no contract renewal protection for an instructor under a fixed-term appointment. Papadopoulos, 511 P.2d at 870-72; see also Or.Admin.Rule 588-21-100(1) (a). When an established formal code governing tenure exists, the codified system "precludes a reasonable expectation of continued employment absent extraordinary circumstances." Haimowitz v. University of Nevada, 579 F.2d 526, 528 (9th Cir. 1978) (collecting cases so holding).

A few statements holding out the possibility of renewal upon satisfactory performance do not create a valid expectation of renewal that rises to the level of a property interest. "As in Roth the Notice of Appointment provided that appellant's employment would terminate on a specified date, and the term of his employment 'secured absolutely no possible claim of entitlement to re-employment.' " Seitz v. Clark, 524 F.2d 876, 881 (9th Cir. 1975) (discussing Board of Regents v. Roth, 408 U.S. 564 (1972)). There was no evidence alleged of an unofficial tenure system which would create the expectation of continued employment, as in Perry. OIT did not terminate Setty before the contractually agreed-to term; it merely exercised its right not to renew his contract. Thus, Setty has established no property interest in continued employment sufficient to trigger due process protections. See Perry, 408 U.S. at 599.

III. Discrimination Against Setty.

Even though Setty could be terminated for no reason at all, he cannot be terminated for a constitutionally impermissible reason. Rankin v. McPherson, 107 S. Ct. 2891, 2896 (1987); see Mt. Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274, 284-85 (1977). Setty claims that OIT dismissed him for the exercise of his first amendment rights to speak out against the discrimination which he perceived. Setty also claims that OIT discriminated against him on the basis of his race or national origin in violation of 42 U.S.C. § 1983. He contends that when he complained of this discrimination he was terminated.

Here OIT has shown a legitimate reason not to renew Setty's contract--there were complaints about his teaching and he was one of the few instructors on a fixed-term appointment who received an "average" ranking on his performance evaluation. Thus, Setty must show that the proffered reason is merely a pretext to mask discriminatory conduct. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Setty fails to prove any discrimination against him regarding assignments or working conditions. To the extent that Setty was treated differently from others with annual appointments which were renewed in 1986, OIT advanced valid reasons for the differential treatment which Setty did not rebut.

However, the state, as an employer, may not terminate any employee for exercising his or her first amendment rights. Rankin, 107 S. Ct. at 2891; Pickering v. Bd. of Educ., 391 U.S. 563 (1968); Shelton v. Tucker, 364 U.S. 479 (1960). "The determination whether a public employer has properly discharged an employee for engaging in speech requires 'a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.' " Rankin, 107 S. Ct. at 2896 (quoting Pickering v. Board of Education, 391 U.S. 563, 568 (1968)). We first must determine whether Setty's complaints about the unfairness of his work assignments and general treatment can be "fairly characterized as constituting speech on a matter of public concern." Connick v. Myers, 461 U.S. 138, 146 (1983). We look at the content, form, and context of a given statement to determine whether the speech addresses a matter of public concern. Id. at 147-48.

Setty does not point to any specific statements he made that could form the basis for a claim of retaliatory firing. Setty merely asserts that his first amendment rights have been violated without detailing what he said or that the OIT administrators were even aware of his comments and complaints. Thus, Setty fails to establish that OIT terminated him in retaliation for the exercise of his first amendment rights.

For the reasons explained above, we AFFIRM.

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The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a) and Ninth Circuit Rule 34-4

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This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3