                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                         JAN 12 2005
                             FOR THE TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

    WEI-KANG ZHOU, Dr.,

               Plaintiff-Appellant,

    v.                                                  No. 04-4112
                                                 (D.C. No. 2:01-CV-474-S)
    SOUTHERN UTAH UNIVERSITY,                            (D. Utah)

               Defendant-Appellee,

         and

    STEVEN D. BENNION, President;
    D. RAY ROUTZEL, Provost;
    CHARLES L. METTEN, Dean of
    Performing and Visual Arts; BART
    SHANKLIN, Music Department Chair,

               Defendants.


                             ORDER AND JUDGMENT         *




Before EBEL , BALDOCK , and KELLY , Circuit Judges.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      This appeal arises from a suit filed by Appellant Wei-Kang Zhou alleging

discrimination and breach of contract by his former employer, Southern Utah

University. The district court granted summary judgment in favor of the

University. Nearly one year later, Zhou moved for relief from the judgment

pursuant to Fed. R. Civ. P. 60(b). The district court denied this motion. We

affirm.

                                          I.

      According to the allegations in his amended complaint, Zhou is a

Chinese-born American citizen. In August 2000, he was hired by the University

as an assistant professor of music, with responsibility for directing the school

orchestra as well as teaching classes. The term of his employment contract was

one academic year, subject to renewal.

      When Zhou began working for the University, the chair of the music

department, Bart Shanklin, promptly deprived him of an assignment that would

have allowed him to earn extra pay. Shanklin also assigned evaluators to observe

Zhou, allegedly in response to a student complaint. White faculty members were


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not subjected to the same treatment. When Zhou complained that he was being

treated unfairly, Shanklin recharacterized the “evaluation” as an “adjudication.”

R., Doc. 28 at 4 (quotations omitted). In February 2001, the University advised

Zhou that it would not renew his contract because he had received poor

performance reviews.

      After Zhou received the non-renewal letter, Shanklin’s mistreatment of

Zhou escalated. Ultimately, Zhou alleges, Shanklin falsely accused Zhou of

attempting to disrupt a recital in May 2001, resulting in Zhou being arrested by

the campus police; in response to this incident, the University suspended Zhou

with pay for the final five days of his contract.

      Zhou sued. As amended, his complaint alleged that (i) the University

discriminated against Zhou based on national origin when it refused to renew his

contract; (ii) the University unlawfully retaliated against Zhou for complaining

about the discrimination he experienced; (iii) Shanklin harassed Zhou based on

his ethnicity; and (iv) the University breached its employment contract with Zhou.

After discovery, the University moved for summary judgment. The district court

granted this motion on May 7, 2003, ruling that (i) Zhou could not succeed on his

discrimination claim because he failed to rebut the University’s assertion that it

declined to renew Zhou’s contract based on poor job performance, as reflected in

the negative evaluations by his peers; (ii) the University did not engage in any act


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constituting an adverse employment action after Zhou first engaged in protected

conduct, and Zhou therefore could not prevail on his retaliation claim; (iii) Zhou

did not present any evidence of racial or ethnic animus to support his harassment

claim; and (iv) the University complied with all terms of its contract with Zhou.

Zhou appealed from this judgment, but his notice of appeal was untimely and his

appeal was therefore dismissed.

      On May 6, 2004, Zhou filed his Rule 60(b) motion, which made the

following contentions:

      (1)    The University’s assertion that it declined to renew Zhou’s
             contract based on poor job performance was contradicted by
             Zhou’s colleague’s sworn declaration that the signature on his
             evaluation was forged and by expert testimony stating that
             Zhou performed well in the concerts they viewed on videotape.
             To the extent that the University presented false reasons to
             justify its refusal to renew Zhou’s contract, this gives rise to
             an inference of discriminatory animus that supports both
             Zhou’s discrimination claim and his harassment claim.

      (2)    The fact that Shanklin made a false report for the purpose of
             having Zhou arrested supports Zhou’s discrimination,
             retaliation, and harassment claims.

      (3)    The district court made two errors in rejecting Zhou’s
             retaliation claim. First, it found that Zhou first complained
             about discrimination in March 2001, when in fact his first
             complaint was aired in October 2000. Second, the University
             responded with numerous adverse employment actions that
             began in October 2000 and continued beyond March 2001.

      (4)    The University violated the letter and spirit of its contract with
             Zhou, and engaged in bad faith, by subjecting Zhou to an


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             unfair evaluation process and producing fraudulent documents
             to justify its refusal to renew Zhou’s contract.

The district court summarily denied this motion. This appeal followed.

                                           II.

      Rule 60(b) permits a district court to vacate or modify its judgment on any

of the following grounds:

      (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly
      discovered evidence which by due diligence could not have been
      discovered in time to move for a new trial under Rule 59(b);
      (3) fraud (whether heretofore denominated intrinsic or extrinsic),
      misrepresentation, or other misconduct of an adverse party; (4) the
      judgment is void; (5) the judgment has been satisfied, released, or
      discharged, or a prior judgment upon which it is based has been
      reversed or otherwise vacated, or it is no longer equitable that the
      judgment should have prospective application; or (6) any other
      reason justifying relief from the operation of the judgment.

Relief under Rule 60(b) “is extraordinary and may only be granted in exceptional

circumstances.”   LaFleur v. Teen Help , 342 F.3d 1145, 1153 (10th Cir. 2003)

(quotations omitted). Thus, “[a] plaintiff must overcome a higher hurdle to obtain

relief from a post-judgment motion than on direct appeal from a judgment.”   Id.

We review a decision denying a Rule 60(b) motion for abuse of discretion, and we

will reverse such a decision “only if we find a complete absence of a reasonable

basis and are certain that the decision is wrong.”   Middle Rio Grande

Conservancy Dist. v. Norton , 294 F.3d 1220, 1225 (10th Cir. 2002) (alteration

and quotation omitted).


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      Having examined the briefs and relevant portions of the record, we

conclude that the district court did not abuse its discretion in denying Zhou’s

Rule 60(b) motion. We further find no abuse of discretion in the court’s refusal

to conduct a hearing on Zhou’s motion.   See Anderson v. Dep’t of Health &

Human Servs. , 907 F.2d 936, 952 (10th Cir. 1990). Accordingly, we AFFIRM the

judgment of the district court.



                                                    Entered for the Court


                                                    Bobby R. Baldock
                                                    Circuit Judge




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