Valerie T. Akeyo v. James O'Hanlon ( 1996 )

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No. 94-2818
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Valerie T. Akeyo, *
*
Appellant, *
*
v. * Appeal from the United States
* District Court for the
James O'Hanlon; Birdie Holder; * District of Nebraska.
University of Nebraska at *
Lincoln, *
*
Appellees. *
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Submitted: September 13, 1995
Filed: January 30, 1996
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Before MAGILL, Circuit Judge, FLOYD R. GIBSON and HENLEY, Senior
Circuit Judges.
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HENLEY, Senior Circuit Judge.
Valerie T. Akeyo appeals from a judgment of the district
court1 entered after a bench trial in favor of the University of
Nebraska-Lincoln (university or UNL) and two of its officials, Dr.
James O'Hanlon, dean of UNL's Teacher's College, and Dr. Birdie
Holder, chairperson of the Department of Vocational and Adult
Education (department), on Akeyo's race, national origin,
retaliation, conspiracy and due process claims under 42 U.S.C.
§§ 1981, 1983, 1985(3), 20000e, and Neb. Rev. Stat. § 48-1101, et
seq. We affirm.
1
The Honorable David L. Piester, United States Magistrate
Judge for the District of Nebraska, sitting by consent of the
parties pursuant to 28 U.S.C. § 636(c).
Akeyo, a black female, was born in Africa. By letter of April
5, 1990, UNL offered Akeyo a position as an assistant professor
with the department for the academic year 1990-91. The letter
explained that the appointment was for a specific term as defined
in the university's bylaws, a copy of which was enclosed. Section
4.4.2 of the bylaws provided:
An "Appointment for a Specific Term" is a
probationary appointment . . . for a term of
one year, unless a longer term is specified
. . . . An "Appointment for a Specific Term"
shall carry no presumption of renewal, and
will terminate at the end of the stated term,
if written notice of non-reappointment is
given to the appointee by the appropriate
administrative officer or by the Board . . . .
Akeyo accepted the appointment. During the academic year
Akeyo experienced difficulty with both students and staff.
Although her term was renewed for the 1991-92 academic year, in a
1991 annual review Holder informed Akeyo of a number of concerns,
the most important of which was Akeyo's relationship with students.
In particular, Holder noted that
[o]ver the last 10 weeks, I have had a steady
stream of students in my office who have been
concerned with the organization in your
classroom, with their lack of understanding of
what they are supposed to do, and with the
lack of feedback on the papers that are turned
back to them.
Holder also noted low student evaluations and informed Akeyo she
would have to get the problem under control for "continued growth
and success." Akeyo wrote a rebuttal to the review, which she sent
to O'Hanlon. After consideration of the review and rebuttal and
meeting with Akeyo, O'Hanlon wrote her that "[t]eaching is our
primary responsibility" and her record did not demonstrate
"satisfactory progress toward meeting the tenure requirements."
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Akeyo's problems with staff and students continued during the
summer and fall of 1991. On December 13, 1991, O'Hanlon and Holder
sent Akeyo a letter notifying her that she would not be reappointed
after the 1991-92 academic year because her "performance as a
teacher ha[d] not been adequate to warrant continuation of [her]
appointment in the College." Among other things, they noted that
Akeyo had not "taken appropriate actions relative to the
improvement of teaching as requested of you in your annual review
for the 1990-91 academic year." Akeyo then filed a grievance with
the university affirmative action office and complaints with the
state and federal equal opportunity offices. A grievance committee
found no evidence of racial discrimination, but concluded that
Akeyo's complaints of discrimination played a part in the decision
not to renew her contract.
On August 26, 1992, Akeyo and UNL executed a settlement
agreement, which extended her "appointment for a specific term
. . . through the 1992-93 academic year . . ., subject, however, to
the possibility of non-renewal at the end of the 1992-93 academic
year." The agreement provided that her term would not be renewed
if, after evaluating her performance under factors customarily
considered for faculty evaluations, a tenure committee concluded
that the notice of non-renewal was warranted. In a December 2,
1992 letter, the five-member committee unanimously concluded that
the notice was warranted because of "significant concerns in regard
to teaching quality and outcome." The committee noted there was
"no evidence that Dr. Akeyo had been responsive to student
concerns, nor [had demonstrated] a systematic effort to improve her
teaching."
Akeyo filed suit, alleging race and national origin
discrimination, conspiracy, retaliation, and due process claims.
After a six-day trial, the district court rejected the claims,
noting that throughout the trial Akeyo displayed hostility and
failed to take any responsibility for her problems. As to her
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race, national origin, conspiracy and retaliation claims, the court
found that Akeyo failed to prove that the university's stated
reason for non-renewal - poor teaching performance - was
pretextual. As to her due process claim, it was found that she had
no protected property interest in continued employment because at
all times she was a probationary employee.
On appeal, Akeyo first challenges the district court's finding
that she did not prove the university's reason for non-renewal was
a pretext for discrimination or retaliation. See St. Mary's Honor
Center v. Hicks, 113 S. Ct. 2742, 2747 (1993). The finding of
pretext is one of fact, subject to review only for clear error, and
a "factual finding that is supported by substantial evidence on the
record cannot be clearly erroneous." Ricks v. Riverwood Int'l
Corp., 38 F.3d 1016, 1018 (8th Cir. 1994). In this case, as the
court noted, the record is "replete" with support for the finding
that Akeyo's contract was not renewed because of her teaching.
Akeyo attempts to argue that the court committed clear error
because it credited the university's evidence and discredited her
evidence that she was a good teacher and had been harassed because
of her race and origin. However, "[t]he district court was in the
best position to judge the credibility of the witnesses in this
case, and we will not upset its conclusion." Maness v. Star-Kist
Foods, Inc., 7 F.3d 704, 708 (8th Cir.), cert. denied, 114 S. Ct.
2678 (1994).
Akeyo also argues that the district court ignored the
grievance committee's conclusion that the notice of non-renewal was
due, in part, to retaliation for her discrimination complaints.
The court did not ignore the committee's conclusion, but expressly
found that the trial evidence did not support the committee's
conclusion that retaliation was a factor in the non-renewal.
Where, as here, "an employer proves that its reason for terminating
an employee was independent of the employee's exercise of protected
rights, the termination will be deemed non-retaliatory." Id.
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Moreover, "[e]ven if the protected conduct is a substantial element
in the decision to terminate the employee, the employer will not be
liable if the employee would have been discharged in the absence of
the protected conduct." Id.
Akeyo's argument that the district court erred in rejecting
her due process claim is also without merit. As this court has
recently stated:
Due process rights do not attach to a
nontenured teacher's employment contract
unless the teacher can show the existence of a
liberty or property interest in continued
employment. A property interest in continued
employment cannot arise from a unilateral
expectation; rather, an individual must have a
legitimate claim of entitlement to it. Absent
unusual circumstances, a teacher in a position
without tenure or a formal contract does not
have a legitimate entitlement to continued
employment.
Geddes v. Northwest Missouri State Univ., 49 F.3d 426, 429 (8th
Cir. 1995) (footnote and citations omitted).
Here, no unusual circumstances give rise to a property
interest. Akeyo's offer expressly stated that the offer was an
"Appointment for a Specific Term" as defined in the university
bylaws. The bylaws could not create an expectation of entitlement
because section 4.4.2 provided that an "Appointment for a Specific
Term" was a probationary status position, "carr[ying] no
presumption of renewal." See id. (no expectation of continued
employment where handbook provided faculty member was probationary
employee).
Also, contrary to Akeyo's suggestion, the settlement agreement
did not give rise to a property interest. The agreement merely
"extend[ed] [her] appointment for a specific term . . . through the
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1992-93 academic year, subject to the possibility of non-renewal."
Although, as Akeyo notes, "the agreement detailed with specificity
all the procedures that would be followed in review," as the
district court noted, citing Stow v. Cochran, 819 F.2d 864, 866-67
(8th Cir. 1987), "the mere existence of procedural steps for such
a review does not, by itself, create the necessary property
interest; the process must create an expectancy of continued
employment, not merely an expectation of a review prior to
termination."2
Last, Akeyo argues that the district court erred in failing to
address a state law breach of contract claim. In her complaint,
Akeyo alleged that the university had breached the settlement
agreement, causing her damages. We agree with the university that
the reason the court did not address the claim is because Akeyo
abandoned it at trial. The pretrial order states that Akeyo
disclaimed any damages from any alleged breach of the settlement
agreement. Under state law "[i]n order to recover in an action for
breach of contract, the plaintiff must plead and prove the
existence of a promise, its breach, [and] damage . . . ."
Production Credit Ass'n of Midlands v. Eldin Haussermann Farms,
Inc., 529 N.W.2d 26, 32 (Neb. 1995). Moreover, Akeyo's counsel did
not mention the claim in opening argument, and in closing argument,
2
In her brief, Akeyo cites Wilson v. Robinson, 668 F.2d 380
(8th Cir. 1981), in support of her argument that the settlement
agreement created a property interest. However, in Stow, 819 F.2d
at 867, citing, e.g., Olim v. Wakinekona, 461 U.S. 238 (1983),
modified on other grounds by Sandin v. Connor, 115 S. Ct. 2293
(1995), we held that Wilson "ha[d] been effectively overruled
insofar as it holds that 'procedural rights' alone can create an
independent property right to continued employment when none would
otherwise exist."
In her reply brief, Akeyo also raises a due process liberty
interest argument, which she did not raise in the district court.
As a general rule, we do not address arguments raised for the first
time in a reply brief and there are no reasons in this case to
depart from this rule. See Giove v. Stanko, 49 F.3d 1338, 1344 n.4
(8th Cir. 1995).
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in response to the university's argument that the settlement
agreement constituted a release of Akeyo's discrimination and
retaliation claims, Akeyo's counsel told the court that she could
pursue the claims because the agreement was "null and void." Under
state law, rescission of a contract "implies extinction of the
contract which leaves the parties without a right of recovery on
the contract itself." Hoeft v. Five Points Bank, 539 N.W.2d 637,
644 (Neb. 1995).
For the reasons stated, the appealed judgment is affirmed.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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