Brent McClain v. Vernonia School District , 545 F. App'x 700 ( 2013 )

FILED
NOT FOR PUBLICATION NOV 22 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRENT MCCLAIN, No. 12-35609
Plaintiff - Appellant, D.C. No. 3:11-cv-00756-HA
v.
MEMORANDUM*
VERNONIA SCHOOL DISTRICT, et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Oregon
Ancer L. Haggerty, District Judge, Presiding
Submitted November 5, 2013**
Portland, Oregon
Before: M. SMITH and HURWITZ, Circuit Judges, and MAHAN, District
Judge.***
Appellant Brent McClain appeals a summary judgment entered in favor of
appellees Vernonia School District and Kenneth Cox. McClain argues that he had
*
This disposition is not appropriate for publication and is not precedent except as
provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision without oral
argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable James C. Mahan, District Judge for the U.S. District Court for the
District of Nevada, sitting by designation.
a constitutionally protected property interest in his employment with the school
district, including: (1) the right to be transferred into the teacher on special
assignment (“TOSA”) position; and (2) the right to be recalled to the newly created
part-time administrator position. McClain further argues that the school district
deprived him of his property interest in continued employment without due process
of law.
The Oregon Court of Appeals addressed the statutory rights of probationary
employees in Papadopoulos v. Oregon State Board of Higher Education, 511 P.2d
854 (Or. Ct. App. 1973). In discussing school district employees covered by
sections 342.805 to 342.955 of the Oregon Revised Statutes, the court determined
that “[i]t is clear that at the end of the term of the contract[] during the probationary
period a teacher has no job security.” Id. at 868. The court concluded that
“[e]mployees who are in a probationary status, either temporarily or permanently,
have no property interest within the meaning of the Fourteenth Amendment.” Id.
at 871.
As a probationary employee whose contract expired, McClain had no
protected property interest in continued employment, including any right to be
transferred into the TOSA position or to be recalled to the part-time administrator
position. Because McClain did not have a constitutionally protected property
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interest in his continued employment, the court need not decide whether he was
given sufficient process.
AFFIRMED.
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