Unpublished Disposition, 896 F.2d 555 (9th Cir. 1990)

MEMORANDUM^* 

John Demusiak served as Administrator of Oregon's Labor Relations Division. In 1986 Neil Goldschmidt campaigned for Oregon's governorship on the pledge he would eliminate "dry rot" from state government. After his election, Goldschmidt discharged Demusiak through his aides Fred Miller and Jon Yunker. Demusiak sued, alleging that the three had deprived him of a property interest in state employment without due process. Demusiak further alleged that the combination of Goldschmidt's campaign remarks and Demusiak's discharge deprived him of a liberty interest in his reputation. The district court entered summary judgment against Demusiak on both counts and Demusiak appealed. We affirm.

A. Demusiak's Property Interest and Due Process Claims

Demusiak first claims that Or.Rev.Stat. 240.570 entitled him to restoration to his former position as an Administrative Analyst upon his discharge as Director of Labor Relations. That statute provides that " [a]fter termination of unclassified or exempt service or removal from management service" an employee such as Demusiak "may be restored to a position held in the same agency and service prior to appointment to the unclassified ... services." Or.Rev.Stat. 240.570. Demusiak argues that he thus should have been "restored to a position held in the same agency," that is, the classified position he held as an Administrative Analyst prior to his appointment to the unclassified Administrator's position.

Demusiak agrees, however, that in 1981 after his promotion to unclassified service and before his discharge, the Oregon Personnel Division transferred his former Administrative Analyst position from classified to Management Service. See Or.Rev.Stat. 240.200, 240.212. The restoration statute on which Demusiak relies, Or.Rev.Stat. 240.570, provides only for return to classified service and not to a position in Management Service. The district court therefore properly concluded that the restoration statute "is not ambiguous and does not give Demusiak the right to return to a position [Administrative Analyst now] in management service."

Demusiak argues nonetheless that upon his promotion to the unclassified Administrator position, his right of restoration to his former classified Administrative Analyst position "became a vested property right." Therefore, according to Demusiak, " [a]ny subsequent action by the state which denied that right to return to the former position," including the transfer of his former classified position to the Management Service, "should have been done in accordance with the due process clause." Under Oregon law, however, Demusiak held no such vested right to his former position. See Personnel Div. of the Executive Dep't v. St. Clair, 10 Or.App. 106, ----, 498 P.2d 809, 812 (1972) (state employees "had no 'vested legal rights' in the continuation without change" of work rules). The legislature authorized the Personnel Division to transfer his former classified position to Management Service (see Or.Rev.Stat. 240.200, 240.212), and Demusiak thus had no vested legal right to have his former position continued in the classified service and available to him upon discharge from the Administrator's position. Yunker's denial of Demusiak's demand for restoration to his former position therefore did not deprive Demusiak of a property right.¹  Absent a protected property interest in his former position, Demusiak had no right to a due process hearing upon Yunker's denial of that former position. See Brady v. Gebbie, 859 F.2d 1543, 1547 (9th Cir. 1988), cert. denied, 109 S. Ct. 1577 (1989).

Alternatively, Demusiak argues that if he had no right to his former position as an Administrative Analyst, he nonetheless had a protected property interest in fifty other positions more comparable to his former position than the Administrative Assistant III position Yunker offered. All of these fifty positions are categorized in Management Services. The restoration statute, Or.Rev.Stat. 240.570, therefore affords Demusiak no express right to any of them. Demusiak alleges, however, that the Personnel Division erroneously designated these positions as Management Service positions when in fact they are properly classified positions to which he has restoration rights. In support of this allegation and in opposition to summary judgment, Demusiak submitted an affidavit stating that as someone "aware of the duties" of these fifty positions and of the "applicable definitions for Management Services positions," the fifty positions "do not meet the requisite definitions."

In response to Demusiak's argument, the district court correctly concluded that Demusiak had failed to submit evidence to show "there is an issue of material fact as to the correctness of [the Management Service] designation" of the fifty positions. As the Supreme Court has emphasized, a party opposing summary judgment "must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986), quoting Fed. R. Civ. P. 56(e); emphasis added. Demusiak's affidavit, the only evidence he offered, fails to meet this burden.

B. Demusiak's Liberty Interest and Due Process Claim

Demusiak alleges that Goldschmidt's vow while campaigning for governor to eliminate the "dry rot" in state government coupled with Goldschmidt's discharge of Demusiak upon taking office deprived Demusiak of a liberty interest in his reputation. To sustain his claim, Demusiak must have shown that Goldschmidt's remarks were "sufficiently serious to 'stigmatize' " Demusiak so as to foreclose other opportunities for employment. Kraft v. Jacka, 872 F.2d 862, 869-70 (9th Cir. 1989), quoting Bollow v. Federal Reserve Bank of San Francisco, 650 F.2d 1093, 1101 (9th Cir. 1981), cert. denied, 455 U.S. 948 (1982). In Demusiak's case, the district court correctly held that Goldschmidt's remarks about "dry rot" in state government in general did not sufficiently stigmatize Demusiak in particular to implicate his liberty interest in his reputation.

Demusiak argues that stigmatization is a fact issue improperly decided in summary judgment. Demusiak, however, has not cited to any evidence in the record showing that others understood Goldschmidt to have accused Demusiak of corruption, to have discharged him for corruption, or to have foreclosed future employment opportunities for Demusiak. See Roley v. Pierce County Fire Protection Dist. No. 4, 869 F.2d 491, 495-96 (9th Cir. 1989). Demusiak thus has failed to carry his evidentiary burden in opposing summary judgment on this issue as well. Anderson, 477 U.S. at 250. We therefore affirm the district court's grant of summary judgment on Demusiak's liberty interest claim.

The judgment of the district court on all claims is

AFFIRMED.