GEORGE FERNANDEZ and RANGESAN NARAYANAN v. BOARD OF REGENTS OF NEVADA SYSTEM OF HIGHER EDUCATION and STATE OF NEVADA

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GEORGE FERNANDEZ and
RANGESAN NARAYANAN,
Plaintiffs - Appellants,
v.
BOARD OF REGENTS OF NEVADA
SYSTEM OF HIGHER EDUCATION and
STATE OF NEVADA,
Defendants - Appellees.
No. 14-15554
D.C. No. 3:11-cv-00744-LRH-
VPC
MEMORANDUM*
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.
FILED
MAR 23 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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.

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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).
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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
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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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