                                                                                         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                               NOT FOR PUBLICATION                                        NOV 22 2013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


                                            2
interest in his continued employment, the court need not decide whether he was

given sufficient process.

      AFFIRMED.




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