defendant Fuchs, and that plaintiff was fired for job-related reasons adding up to substandard performance and not for racial considerations.
II. Legal Analysis
We begin with the well-established proposition that the mere fact of government employment, without more, does not of itself trigger any constitutional requirement that an individual be given a hearing or other procedural protections prior to dismissal. Cafeteria and Restaurant Workers Union, Local 473, AFL-CIO, et al. v. McElroy, et al., 367 U.S. 886, 81 S. Ct. 1743, 6 L. Ed. 2d 1230 (1960); Vitarelli v. Seaton, 359 U.S. 535, 79 S. Ct. 968, 3 L. Ed. 2d 1012 (1959). In Vitarelli, the Supreme Court noted that an Interior Department employee who enjoyed no statutory protection under the Civil Service Act could be summarily discharged by the Secretary at any time without a reason being provided. Subsequent to these decisions, the Supreme Court increased the breadth of procedural protection under the due process clause. See Perry v. Sindermann, 408 U.S. 593, 92 S. Ct. 2694, 33 L. Ed. 2d 570 (1972); Board of Regents v. Roth, 408 U.S. 564, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972); Bell v. Burson, 402 U.S. 535, 91 S. Ct. 1586, 29 L. Ed. 2d 90 (1971); Wisconsin v. Constantineau, 400 U.S. 433, 91 S. Ct. 507, 27 L. Ed. 2d 515 (1971); Goldberg v. Kelly, 397 U.S. 254, 90 S. Ct. 1011, 25 L. Ed. 2d 287 (1970). However, as this Circuit's Court of Appeals has noted, "... as a threshold requirement the plaintiff in a public employee dismissal case must show that he has either a legitimate entitlement with respect to his job, which would be protected as property under the Fifth or Fourteenth Amendments, or that his dismissal deprives him of a liberty interest protected by those constitutional provisions .... Only if the court first finds that a "liberty' or "property' interest is affected will it go on to a balancing of interest analysis to determine what level of procedural protection is appropriate." Mazaleski v. Treusdell, 183 U.S. App. D.C. 182, 562 F.2d 701, 709 (D.C.Cir.1977).
A. Plaintiff's "Property Interest" in Continued Employment
We turn to plaintiff's allegation that he was denied his property interest in continued employment with the Commission without due process of law as mandated by the Fifth Amendment. Plaintiff relies on Board of Regents v. Roth, supra, and its progeny for the proposition that his interest in continued employment with the Commission rose to the level of a constitutionally protected property interest requiring that he be afforded proper notice, a hearing, and a right of appeal prior to termination of his employment. We cannot agree.
As the court in Roth observed, "the procedural protection of property is a safeguard of the security of interests that a person has already acquired in specific benefits." Board of Regents v. Roth, supra, 408 U.S. at 576, 92 S. Ct. at 2708. Although constitutionally protected, these property interests are not created by the Constitution. "Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law rules or understandings that secure certain benefits and that support claims of entitlement to those benefits." Id. at 577, 92 S. Ct. at 2709. In the case of a public employee, rules or understandings establishing that an employee would lose his job only for a job-related reason give the employee a property interest in the position affording him procedural due process protections prior to dismissal.
Ashton v. Civiletti, 198 U.S. App. D.C. 190, 613 F.2d 923 (D.C.Cir.1979).
It is undisputed in the instant action that plaintiff and other members of the Commission's staff who are not civil service employees do not enjoy the panoply of civil service procedural protections ordinarily accorded other federal workers.
It is also undisputed that no written contract exists which guarantees plaintiff employment with the Commission for a fixed term, or for a period of satisfactory job performance. Therefore, in order for plaintiff to have a property interest in his employment with the Commission, there must be a "mutually explicit understanding" supporting his claim of entitlement to continued employment. See Perry v. Sindermann, supra, 408 U.S. at 601, 92 S. Ct. at 2699. Such an understanding need not be embodied in a written contractual agreement. As the Supreme Court has noted:
A written contract with an explicit tenure provision clearly is evidence of a formal understanding that supports a teacher's claim of entitlement to continued employment unless sufficient "cause' is shown. Yet absence of such an explicit contractual provision may not always foreclose the possibility that a teacher has a "property' interest in re-employment. For example, the law of contracts in most, if not all, jurisdictions long has employed a process by which agreements, though not formalized in writing, may be "implied' .... Explicit contractual provisions may be supplemented by other agreements implied from "the promisor's words and conduct in the light of the surrounding circumstances.'