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).

___________

No. 94-2818

___________

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. *

___________

 Submitted: September 13, 1995

 Filed: January 30, 1996 ___________

Before MAGILL, Circuit Judge, FLOYD R. GIBSON and HENLEY, Senior

Circuit Judges.

___________

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.
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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
 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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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,
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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.