IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-20382

Summary Calendar

CONSTANTIN G. IOANNIDES,

Plaintiff-Appellant,

v.

UNIVERSITY OF TEXAS M.D. ANDERSON CANCER CENTER; JOHN

MENDELSOHN; DAVID GERSHENSON,

Defendants-Appellees

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:09-CV-1988

Before JOLLY, GARZA, and STEWART, Circuit Judges.

PER CURIAM:

*

In this appeal, Constantine Ioannides (“Ioannides”), a former employee at

the University of Texas M.D. Anderson Cancer Center, argues that the district

court erred by granting summary judgment to the Defendants-Appellees

(“University”). The district court concluded that Ioannides’s claim under 42

United States Court of Appeals

Fifth Circuit

F I L E D

February 3, 2011

Lyle W. Cayce

Clerk

 Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not *

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

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U.S.C. § 1983 failed because as a matter of law, the University did not violate

Ioannides’s due process rights. We agree.

The University initially hired Ioannides as a visiting scientist in a nontenure track position. Subsequently, the University offered Ioannides two

separate seven-year term appointments. A year before Ioannides’s second term

expired, the school offered him a one-year contract, which extended his

employment until August 2008. The school sought to end Ioannides’s tenure

because the administration had learned, among other things, that: (1) Ioannides

had falsely claimed funding for a project listed on his curriculum vitae; and (2)

Ioannides had not obtained any new grants or funding since 2001. Ioannides

initiated an administrative appeal and the school’s president delayed Ioannides’s

termination, offering Ioannides another one-year appointment. Renewal of this

contract depended on Ioannides obtaining grants or funding equal to at least

thirty percent of his salary. Ioannides failed to obtain the money, and in July

2009, the University notified Ioannides that his employment would end when

the contract expired in January 2010.

Ioannides sued his former employer, arguing that the University had

violated his property interests under the Fifth and Fourteenth Amendments by

terminating him. The University moved for summary judgment arguing, among

other things, that Ioannides was not deprived of his due process rights. The

district court agreed, concluding that University officials had afforded Ioannides

an opportunity to contest, and appeal, the school’s termination decision. The

district court also found that Ioannides’s substantive due process rights were not

violated because the University’s decision to terminate Ioannides was reasonably

related to a legitimate governmental interest.

We review a district court’s summary judgment ruling de novo. Whiting

v. Univ. of S. Miss., 451 F.3d 339, 343 (5th Cir. 2006). Under the Federal Rules

of Civil Procedure, a party is entitled to summary judgment if the pleadings and

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discovery materials demonstrate “that there is no genuine dispute as to any

material fact.” FED. R. CIV. P. 56(a). Facts and inferences reasonably drawn

from the record are considered in the light most favorable to the non-moving

party. Whiting, 451 F.3d at 343.

Under the Fifth and Fourteenth Amendments, procedural due process

guarantees the right to notice and a hearing for a public employee with a

property right in his employment. Cleveland Bd. of Educ. v. Loudermill, 470

U.S. 532, 546 (1985); see also Lindquist v. City of Pasadena, Tex., 525 F.3d 383,

388 (5th Cir. 2008). Several months before his contract ended, the University

provided Ioannides notice that he would not be re-hired. Ioannides

administratively appealed both his performance evaluation and the school’s

employment decision. During the appeals process, Ioannides was afforded a

hearing and the opportunity to individually meet with the school’s president.

Thus, the University did not violate Ioannides’s procedural due process rights.

To state a substantive due process claim, a plaintiff must show that the

government’s deprivation of property right was either “arbitrary or not

reasonably related to a legitimate governmental interest.” Williams v. Tex. Tech

Univ. Health Scis. Ctr., 6 F.3d 290, 294 (5th Cir. 1993). Ioannides argues that

the University terminated him in retaliation for a letter Ioannides had written

to an outside organization. This interpretation of the facts is incorrect. From

the record, it is clear that the University repeatedly informed Ioannides that he

needed to obtain outside funding for his research laboratory. Ioannides failed

to do this. In addition, in employee evaluations, University officials told

Ioannides that he had not met the school’s performance expectations. Thus, the

record bellies Ioannides’s contention that the school had terminated him

arbitrarily or in retaliation for his acts.

Ioannides also argues that the district court erred by considering the

substantive due process issue sua sponte. Ioannides asserts that in the

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University’s summary judgment brief, the University did not argue for summary

judgment as to the substantive due process claim. Ioannides contends this

means he was not afforded notice that the district court would consider his

substantive due process claim. The record clearly contradicts this allegation.

Ioannides correctly notes that at certain points, the University’s brief in support

of their motion confused procedural due process with substantive due process.

1

Despite this, at other points in the University’s brief, the school clearly explained

that officials had terminated Ioannides because he failed to secure funding.

And, in its reply brief, the University discussed the correct legal standard for a

substantive due process claim and argued why Ioannides’s termination was

reasonable. More importantly, Ioannides’s response, in which he argued about

the substantive due process issue at length, demonstrates that Ioannides knew

the substantive due process issue could be considered by the district court.

Thus, both parties raised and argued the substantive due process claim and the

district court did not err by considering the issue.

We AFFIRM the district court’s order because there are no material

questions of fact as to whether the University violated Ioannides’s procedural or

substantive due process rights.

For example, on page 13 of their brief in support of the motion, the University stated:

1

“At every turn, Dr. Ioannides was given fair notice and an opportunity to be heard and thus,

was afforded substantive due process as a matter of law.”

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