UNITED STA TES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

EUGENE DIVISION 

MARIE ROSS, 

Plaintiff, 

V. 

SOUTHWESTERN OREGON COMMUNITY 

COLLEGE, 

Defendant. 

COFFIN, Magistrate Judge: 

6:16-CV-118-TC 

ORDER 

Plaintiff was employed for many years as a testing proctor by defendant Southwestern Oregon 

Community College. Her position was reconfigured and she was not hired for the reconfigured 

position after an admittedly poor interview. 

Plaintiff asserts a single federal claim for an alleged Section 1983 Procedural Due Process 

violation. She also asserts whistleblowing and wrongful discharge claims under state law. 

Presently before the court is defendant's motion for summary judgment. 

Page 1 - ORDER 
Legal Standard 

Federal Rule of Civil Procedure 56 allows the granting of summary judgment: 

if the pleadings, the discovery and disclosure materials on file, and any affidavits 

show that there is no genuine issue as to any material fact and that the movant is 

entitled to judgment as a matter of law. 

Fed. R. Civ. P. 56(c). There must be no genuine issue of material fact. Anderson v. Liberty Lobbv, 

Inc., 477 U.S. 242, 247-48 (1986). 

The movant has the initial burden of establishing that no genuine issue of material fact exists 

or that a material fact essential to the nonmovant's claim is missing. Celotex Corp. v. Catrett, 477 

U.S. 317, 322-24 (1986). Once the movant has met its burden, the burden shifts to the nonmovant 

to produce specific evidence to establish a genuine issue of material fact or to establish the existence 

of all facts material to the claim. !fl; see also, Bhan v. NME Hosp., Inc., 929 F.2d 1404, 1409 (9th 

Cir. 1991); Nissan Fire & Marine Ins. Co., Ltd., v. Fritz Cos., Inc., 210 F.3d 1099, 1105 (9th Cir. 

2000). In order to meet this burden, the nonmovant "may not rely merely on allegations or denials 

in its own pleading," but must instead "set out specific facts showing a genuine issue of fact for 

trial." Fed. R. Civ. P. 56(e). 

Material facts which preclude entry of summary judgment are those which, under applicable 

substantive law, may affect the outcome of the case. Anderson, 477 U.S. at 248. Factual disputes 

are genuine if they "properly can be resolved only by a finder of fact because they may reasonably 

be resolved in favor of either party." Id. On the other hand, if, after the court has drawn all 

reasonable inferences in favor of the nonmovant, "the evidence is merely colorable, or is not 

significantly probative," summary judgment may be granted. Id. 

Page 2 - ORDER 
Discussion 

As discussed below, defendant has established that no genuine issue of material fact exists on 

the Section 1983 claim and that defendant is entitled to summary judgment as a matter of law on 

such claim. As also discussed below, because the only federal claim is being dismissed, the 

whistleblowing and wrongful discharge claims brought pursuant to state law are dismissed without 

prejudice to refile in state court. 

I. Federal Claim - Procedural Due Process 

A. Plaintiff did not have a property interest in her position with defendant under the Collective 

Bargaining Agreement 

Plaintiff alleges that she was deprived of her constitutionally protected interest in the legitimate 

expectation of continued employment without due process of law. 

In determining whether plaintiff was denied a property interest without due process of law, the 

court must first determine whether plaintiff has a property interest in continued employment. 

Property interests are not created by the U. S. Constitution, but rather by an independent source, such 

as state law. Board of Regents v. Roth, 408 U.S. 564, 577 (1972). Further, to have a property 

interest, a person must have a legitimate claim of entitlement to such an interest, not a mere 

unilateral expectation of continued employment. Id. 

If, under state law, employment is at-will, then the claimant has no property interest in the job. 

Id. This applies to both private and public employment. See, Lawson v. Umatilla County, 139 

F.3d 690, 692-693 (91

h Cir. 1998). Oregon Courts have held that public employees who are in 

positions without any means of acquiring permanent job security and who remain on probationary 

Page 3 - ORDER 
I 

I 

I 

l 

I 

1 

I 

l 

I 

! 

l 

status permanently have no property interest within the meaning of the Fourteenth Amendment. See, 

~' Papadopoulos v. Oregon State Board of Higher Education, 14 Or. App. 130, 167-168 (1973). 

Employees without a property interest are not entitled to a pretermination hearing or to be informed 

of the reasons for their discharge or failure to rehire. See, Board of Regents, 408 U.S. at 578. 

Plaintiff was employed as a proctor and that position, at all relevant times, was characterized as 

temporary. Although plaintiff was employed for a significant period of time, her own subjective 

and unilateral belief that she was entitled to continued employment is insufficient to entitle her to 

procedural due process protections. Rather, plaintiff had no property interest in continued 

employment, and there is no statute or College policy to the contrary. Plaintiff was not a member 

of the union at the College, did not consider herself to be a member of the union, and did not pay 

union dues, and, thus, could not invoke any job protections from the collective bargaining 

agreement. Therefore, as an at-will employee, the College could terminate plaintiffs employment 

at any time. Despite plaintiffs arguments discussed below, plaintiff cannot establish an essential 

element of her Procedural Due Process claim -that she had a protected property interest in 

continued employment - and, as such, her federal claim is dismissed. 

Plaintiff does not dispute that the College categorized plaintiffs proctor position as an at-will 

employee, but rather whether that categorization was appropriate under the collective bargaining 

agreement. Whether or not plaintiffs hours worked fit a definition of a union eligible employee has 

no bearing on the analysis of whether she had a property interest in continued employment at the 

time her position was reconfigured. Sufficiency of hours worked is not equivalent to union 

membership. Prior to the filing of this lawsuit, plaintiff did not identify herself as a member of the 

union, review the collective bargaining agreement, pay membership dues, pursue membership, or 

Page 4 - ORDER 
1 

i 

J 

 ~ 

I 

I 

I 

1 

~ 

pursue a grievance. Rather, she retroactively attempts to utilize the union's grievance and subsequent 

settlement with the College as a basis for asserting a retroactive property interest in the proctor 

position. This union activity, in which plaintiff had limited to no involvement 1 does not alter her 

at-will employment status when she was separated from her employment with the College. As such, 

the collective bargaining agreement did not provide plaintiff with a property interest in her proctor 

position with the College. 

B. Plaintiff has no other independent source to form a basis for a property interest in her position 

with the College 

Plaintiff also attempts to utilize ORS 341.54 7, the corresponding regulations and the College's 

policies related to these employee notice requirements as an independent source of plaintiffs alleged 

reasonable expectation of continued employment. However, such does not provide an independent 

source to form a basis for a property interest in plaintiffs position with defendant. 

ORS 341.547 is entitled "Notice of Reasonable Assurance of Continued Employment." The 

purpose of this statute is to prevent education employees from collecting unemployment during 

summer months, not to provide a prolonged property interest for a term or academic year. See ORS 

657.167 (2); see also Employment Division v. Ash, 89 Or. App. 429, 431-432 (1988). Moreover, 

even if the statute, regulations and policies could theoretically be independent sources of an 

employee's reasonable expectations of continued employment through the following academic 

term, that is not the effect in this particular case as 1) plaintiff was notified of her mm-selection for 

1

Plaintiff authorized the union to look at her hours, but that was the extent of her 

involvement with the union . 

Page 5 - ORDER 
the testing/proctor coordinator position in February 2015, prior to the May 30 statutory notice 

deadline; 2) any prior year's notice would cease to provide an expectation of continued employment 

after plaintiff continued in her position the following term (i.e., Fall 2014 term); and 3}plaintiff 

had not performed the duties of tutor in the period immediately before the Summer 2015 vacation 

period, and, as such, she was not required to be provided notice of continued employment for the 

vacation period following the May 30 notice deadline. 

C. Even if plaintiff had a property interest , the College cannot be held liable under Section 1983 

because there was no deliberate indifference to plaintiffs constitutional rights 

In addition to showing a property interest, plaintiff must also adequately show deliberate 

indifference to plaintiffs constitutionally protected rights to establish Section 1983 liability 

against defendant College. See, Oviatt v. Pearce, 954 F.2d 1470, 1474 (91

h Cir. 1992); p. 9 of 

Plaintiffs Response (#25). Plaintiff identifies the College's past practices utilized in the hiring 

process as the deliberately indifferent custom that resulted in plaintiffs alleged due process claim. 

However, in articulating why the hiring process practice and custom was "deliberately indifferent 

"to plaintiffs constitutional rights, plaintiff merely reiterates her criticism of the College's selection 

criteria and failure to provide more weight to past experience, rather than interview scores. Plaintiff 

also identifies Mr. Keller, the hiring committee chair, and Mr. Tomlin, the hiring authority, as 

supervisors in a position to retaliate based upon the hiring process. As demonstrated by defendant, 

these employees followed the College's reasonable past practice and custom in hiring and did not 

alter the outcome of plaintiffs non-selection for the reconfigured position. Plaintiff also points to 

the hiring authority's ultimate discretion in selecting the successful candidate as a deliberately 

Page 6 - ORDER 
. 

indifferent custom. However, Section 1983 liability cannot attach based solely on hiring authority's 

discretion in selecting the top candidate for the position in the circumstances of this case. See Gi11ete 

v. Delmore, 979 F.2d 1342, 1348 (91h Cir. 1991), quoting St. Louis v. Praprotonik, 485 U.S. 112, 

126 (1988) ("if the mere exercise of discretion by an employee could give rise to a constitutional 

violation, the result would be indistinguishable from [improper] respondeat superior liability"). 

Therefore, even if plaintiff had a property interest in her job, no Section 1983 liability may attach 

to the College, and defendant is entitled to judgment as a matter of law. 

II. Claims Brought Under State Law 

This court exercises its discretion and declines to exercise supplemental jurisdiction over the 

remaining claims brought under state law as all federal claims have been dismissed and such is 

appropriate in the circumstances of this case. 28 U. S. C. Section 1367 (c) (3); Acri v. Varian 

Associates, Inc., 114 F.3d 999, 1001 (91

h Cir. 1997) ("The Supreme Court has stated, and we have 

often repeated, that 'in the usual case in which all federal law claims are eliminated before trial, the 

balance of factors ... will point towards declining to exercise jurisdiction over the remaining statelaw claims'" (citation omitted)). 

This court has not invested its judicial energies as to the state-law claims to such an extent that 

would justify retaining jurisdiction. Nor is it apparent that judicial economy would be served by 

retaining jurisdiction over this case. Although it might be more convenient for the plaintiff if the 

court retained jurisdiction, fairness and comity would be served by declining jurisdiction. 

Conclusion 

Page 7 - ORDER 
Defendant's motion(# 21) for summary judgment is allowed to the extent plaintiffs Section 

1983 claim is dismissed. The court declines to exercise supplemental jurisdiction over plaintiffs 

remaining claims brought under state law. As such, these claims are dismissed without prejudice 

to refile in state court. This action is dismissed. 

DATED this n day of ApriL 2017 . 

Page 8 - ORDER