                                                                            FILED
                           NOT FOR PUBLICATION                              MAR 23 2016

                                                                         MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


GEORGE FERNANDEZ and                             No. 14-15554
RANGESAN NARAYANAN,
                                                 D.C. No. 3:11-cv-00744-LRH-
              Plaintiffs - Appellants,           VPC

 v.
                                                 MEMORANDUM*
BOARD OF REGENTS OF NEVADA
SYSTEM OF HIGHER EDUCATION and
STATE OF NEVADA,

              Defendants - Appellees.


                    Appeal from the United States District Court
                             for the District of Nevada
                     Larry R. Hicks, District Judge, Presiding

                       Argued and Submitted March 16, 2016
                            San Francisco, California

Before: BYBEE and N.R. SMITH, Circuit Judges and KORMAN,** Senior District
Judge.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Edward R. Korman, Senior District Judge for the U.S.
District Court for the Eastern District of New York, sitting by designation.
      Plaintiffs-appellants Narayanan and Fernandez were tenured faculty at the

University of Nevada, Reno, who filed this suit against the Board of Regents of the

Nevada System of Higher Education, as well as then-Provost Marc Johnson, after

they were terminated during a recent round of budget cuts at the university. They

allege national origin discrimination in violation of 42 U.S.C. § 2000e-2 and 42

U.S.C. § 1983, as well as violations of their substantive due process rights and

state-law breach of contract claims. They appeal (1) the district court’s entry of

summary judgment on the national origin discrimination claims; and (2) the

dismissal of their substantive due process claims and (3) contract claims. We have

jurisdiction under 28 U.S.C. § 1291, and we affirm.

      1. The plaintiffs failed to show disparate treatment based on their national

origin. In order to establish such a claim, the plaintiffs must make a prima facie

showing of discrimination by demonstrating that similarly situated individuals not

in the plaintiffs’ protected class were treated more favorably, or that the university

had a continuing need for the plaintiffs’ services. Coleman v. Quaker Oats Co.,

232 F.3d 1271, 1281 (9th Cir. 2000). If a plaintiff establishes a prima facie case,

the burden of proof then shifts to the defendants to demonstrate that there were

legitimate, non-discriminatory reasons for the adverse employment action.

Chuang v. Univ. Cal. Davis, Bd. of Trs., 225 F.3d 1115, 1123–24 (9th Cir. 2000).


                                           2
If the defendants do so, then the burden shifts back to the plaintiffs to raise a triable

issue of material fact as to whether the defendants’ given reasons for the adverse

action were pretextual. Noyes v. Kelly Servs., 488 F.3d 1163, 1168 (9th Cir. 2007).

      The plaintiffs failed to establish a prima facie case. The individuals they

identified as being similarly situated had materially different qualifications or held

materially different positions at the university, and so were not, in fact, similarly

situated to the plaintiffs. Moran v. Selig, 447 F.3d 748, 755 (9th Cir. 2006) (noting

that two employees’ roles need not be identical, but must be similar “in all material

respects”); Vasquez v. Cty. of Los Angeles, 349 F.3d 634, 641 (9th Cir. 2003)

(individuals will typically be similarly situated “when they have similar jobs and

display similar conduct”). It is undisputed that the plaintiffs’ administrative

positions and the department in which they were tenured were eliminated during

the budget cuts, and the plaintiffs did not identify any open faculty positions at the

university for which they were qualified that they could have filled instead.

      Even assuming the plaintiffs established a prima facie case, however, the

defendants demonstrated that there were legitimate, non-discriminatory reasons for

the plaintiffs’ termination (state-mandated budget cuts), and the plaintiffs failed to

produce sufficient evidence to create a dispute of material fact as to whether the

non-discriminatory reasons for the layoffs were pretextual. Indeed, the evidence


                                            3
showed that the university actively sought alternative positions for the plaintiffs in

order to retain them, but that there were no available positions for the plaintiffs to

fill. The district court did not err in granting summary judgment on these claims.

      2. To the extent the plaintiffs’ substantive due process claims are premised

on national origin discrimination, these claims are dealt with by the analysis above.

As to the substantive due process claims premised on breach of contract, this court

has never held that a state actor commits a substantive due process violation

merely by breaching a contract. The district court did not err in dismissing these

claims.

      3. Regarding the breach of contract claims, the plaintiffs did not plausibly

allege that the university committed violations of the Nevada System of Higher

Education Code in terminating them after their positions were eliminated during

the curricular review process. Given the context in which they were laid off, the

plaintiffs needed to make more than the bare assertion that they could have been

reassigned to alternative positions or that the university did not make reasonable

efforts to retain them. The plaintiffs were twice given the chance to amend their

complaint as to these claims, and failed to allege any additional facts to render their

allegations plausible. The district court did not err in dismissing these claims.

      AFFIRMED.


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