George Robert Pettit v. Milton Glick

* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GEORGE ROBERT PETTIT,
Plaintiff - Appellee,
v.
MILTON GLICK,
Defendant - Appellant,
and
ARIZONA BOARD OF REGENTS;
ARIZONA SCIENCE AND
TECHNOLOGY ENTERPRISES, LLC;
JOHN DOE CHANG; YUNG CHANG,
Defendants.
No. 09-15124
D.C. No. 2:05-cv-02922-ROS
MEMORANDUM *
Appeal from the United States District Court
for the District of Arizona
Roslyn O. Silver, District Judge, Presiding
Argued and Submitted March 11, 2010
San Francisco, California
Before: WALLACE, GRABER and McKEOWN, Circuit Judges.
FILED
APR 14 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Dr. George Pettit, a research scientist and tenured professor at Arizona State
University (“ASU”), brought a 42 U.S.C. § 1983 action against then-Provost
Morton Glick and others for removing Pettit from his positions as Director of
ASU’s Cancer Research Institute (“CRI”) and the Dalton Chair of Cancer Research
and Medicinal Chemistry. Glick filed motions to dismiss and for summary
judgment on the basis of qualified immunity, arguing that, under Arizona law, the
two positions were not lifetime appointments and that, even if they were, this right
was not clearly established. The district court denied Glick qualified immunity,
and Glick filed an interlocutory appeal to challenge the district court’s orders. We
reverse and remand.
Orders denying qualified immunity may be immediately appealed under the
collateral order doctrine. Mitchell v. Forsyth, 472 U.S. 511, 526-27 (1985). We
review de novo a decision denying a motion to dismiss and motion for summary
judgment based on qualified immunity. McSherry v. City of Long Beach, 584
F.3d 1129, 1134 (9th Cir. 2004).
Under Pearson v. Callahan, we may “exercise [our] sound discretion in
deciding which of the two prongs of the qualified immunity analysis should be
addressed first in light of the circumstances in the particular case at hand.” — U.S.

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—, 129 S. Ct. 808, 818 (2009). We elect to proceed under the second prong of the
qualified immunity analysis: whether the right at issue was clearly established such
that a reasonable officer would have known that his conduct violated that right. Id.
at 815. We consider whether the right was clearly established “in light of the
specific context of the case, not as a broad general proposition.” Saucier v. Katz,
533 U.S. 194, 201 (2001), overruled on other grounds by Pearson, — U.S. —, 129
S. Ct. at 818.
Under Arizona law, “[t]he general rule is that an employment agreement of
indefinite duration is presumed to be terminable at will by either party with or
without cause. Because the at-will relationship is contractual, however, the parties
can modify that presumption.” Duncan v. St. Joseph’s Hosp. & Med. Ctr, 903 P.2d
1107, 1111 (Ariz. Ct. App. 1995) (citations omitted). No contract, document, or
express promise existed indicating that the CRI Director was a lifetime
appointment or that the Director could not be removed. Glick, as a reasonable
official, could not have known that Pettit might have a property right in the CRI
Director position or thereby in the Dalton Chair which, by contract, was simply
derivative of whoever held the CRI Director position. Therefore, the district court
erred in denying qualified immunity to Glick.
REVERSED AND REMANDED.

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