United States Court of Appeals
For the First Circuit
No. 01-2032
EDWARD A. WOJCIK and DEBRA WOJCIK,
Plaintiffs, Appellants,
v.
MASSACHUSETTS STATE LOTTERY COMMISSION; SHANNON P. O'BRIEN,
individually and in her official capacity; JAY MITCHELL,
individually and in his official capacity; and DWIGHT ROBSON,
individually and in his official capacity,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Before
Torruella, Circuit Judge,
Campbell and Cyr, Senior Circuit Judges.
Philip N. Beauregard, with whom Michael Franco and Beauregard,
Burke & Franco were on brief, for appellants.
Salvatore M. Giorlandino, Assistant Attorney General, with
whom Thomas F. Riley, Attorney General of Massachusetts, and Maria
Hickey Jacobson, Assistant Attorney General, were on brief, for
appellees.
August 20, 2002
TORRUELLA, Circuit Judge. Appellant Edward Wojcik
("Wojcik") and his wife, Debra, brought suit against the
Massachusetts State Lottery Commission ("Lottery Commission") and
a handful of Lottery Commission officials for damages arising out
of Wojcik's termination as a Lottery Commission employee. After
dismissing the claims against one defendant on Eleventh Amendment
grounds, the district court granted the remaining defendants'
motion for summary judgment on all of the claims under federal
law.1 The leftover state-law claims were dismissed without
prejudice. On appeal, Wojcik claims error in the district court's
Eleventh Amendment and summary judgment rulings. Finding none, we
affirm.
I.
A.
We recite the facts in the light most favorable to
appellant, drawing all reasonable inferences in his favor. See
McIntosh v. Antonio, 71 F.3d 29, 33 (1st Cir. 1995).
Wojcik was hired by the Lottery Commission in 1976. In
1999, he held the position of Field Service Manager in the Lottery
Commission's office in Fairhaven, Massachusetts. His employment
1
The district court granted summary judgment on Debra Wojcik's
federal claims on the ground that they were essentially premised on
a loss of consortium. See Tauriac v. Polaroid Corp., 716 F. Supp.
672, 673 (D. Mass. 1989) ("The spouse of an alleged federal civil
rights victim is not permitted an ancillary cause of action for
loss of consortium"). On appeal, there appears to be no challenge
to the district court's decision in this regard. We therefore
assume that only Edward Wojcik's federal claims are at issue on
appeal.
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history with the Lottery Commission was largely uneventful until
August 30, 1999. On that day, he was confronted in the Fairhaven
office by the Lottery Commission's General Counsel, Internal
Auditor, and Chief Investigator. These officials were accompanied
by a Massachusetts state police officer.
Wojcik was interrogated concerning allegations that he
had been playing scratch tickets in violation of a Massachusetts
law that prohibits "any member or employee of the [Lottery]
commission or . . . any spouse, child, brother, sister or parent
residing as a member of the same household in the principal place
of abode of any member or employee of the commission" from
purchasing a Massachusetts lottery ticket or a share of a ticket,
and from being paid any prize from a lottery ticket. Mass. Gen.
Laws ch. 10, § 31.
Wojcik was also interrogated concerning his possible
knowledge of eleven books of scratch tickets that had recently been
discovered missing from the Fairhaven office. At the end of the
interrogation, the officials informed Wojcik that he was suspended
without pay.
At the time of these events, the Lottery Commission was
the object of intense media scrutiny caused by allegations of theft
and embezzlement by Lottery Commission employees. The media also
picked up on the story of the missing scratch tickets in the
Fairhaven office and linked the story to the recent suspension of
Wojcik and two other employees in the same office. Articles
appeared in the Boston Globe, Boston Herald, New Bedford Standard
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Times, and Brockton Enterprise. The Lottery Commission's stated
position in the articles was that Wojcik and the others were under
investigation for "violation of Lottery policies and procedures and
applicable statutory provisions."
Wojcik was a member of the Service Employees
International Union, Local 254 ("Union" or "Local 254"), which had
a collective-bargaining agreement with the Lottery Commission.
Under that agreement, employees could not be terminated "without
just cause." According to Wojcik, immediately following his
suspension, Local 254 contacted the Lottery Commission on Wojcik's
behalf, requesting specifics of the allegations against him, but
the Lottery Commission provided no details, such as dates, places,
and witness names.
On September 20, 1999, Wojcik received a letter of
termination, signed by the Executive Director of the Lottery
Commission, appellee Jay Mitchell. The letter states that Wojcik
was terminated for "violation of Lottery policies and procedures
and applicable statutory provisions."
Again, publicity appeared in the news media. In
particular, the Boston Globe and Boston Herald both reported that
two Lottery Commission employees had been terminated and another
had resigned under suspicion of stealing winning scratch tickets.
The Lottery Commission's official stance remained that Wojcik was
terminated "for failing to meet standards and for violating lottery
policies and procedures."
-4-
Shortly after his termination, Wojcik filed a grievance
through the Union to contest his termination and obtain a hearing
on the allegations against him. After several months, during which
Wojcik claims that the Lottery Commission failed to give him
specific notice of the allegations against him, the Lottery
Commission finally denied the grievance. Wojcik then filed for
arbitration, as provided in the collective-bargaining agreement.
The arbitration hearings began on August 9, 2000, and
continued on a scattered basis for several months. At the hearing,
Wojcik had personal counsel representing him. The arbitration
addressed only whether the Lottery had "just cause" under the
collective-bargaining agreement to terminate Wojcik for playing
lottery tickets; it did not address whether he had engaged in the
theft. However, it is now undisputed that Wojcik did not steal
lottery tickets and that he was not connected to the eleven missing
books of scratch tickets. The arbitration proceedings were not
open to the public.
On May 23, 2001, twenty-one months after the suspension,
the arbitrator issued his decision. The arbitrator upheld the
discharge, concluding that Wojcik had played scratch tickets in
violation of both state law and an agreement he signed at the
beginning of his employment with the Lottery Commission. In
particular, the arbitrator credited the testimony of a Lottery
Commission security officer and an administrative assistant from
the Fairhaven office establishing that Wojcik and others played
lottery scratch tickets on a frequent basis. The arbitrator
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concluded that Wojcik and others "chased books of tickets," meaning
that they kept purchasing tickets from a particular book until one
of them won a prize or until they were told that another person had
won a large prize from a ticket in that book. The arbitrator also
found that Wojcik once hit a large prize and had his mother-in-law
cash the ticket on his behalf. Finally, although Wojcik ultimately
admitted to his wrongdoing, the arbitrator concluded that he had
engaged in dishonesty by initially denying that he violated the
prohibition on playing lottery tickets.
Wojcik did not seek review of the arbitrator's decision.
See Mass. Gen. Laws ch. 150C, § 11 (providing grounds for vacatur
of arbitrator's award).
B.
Edward Wojcik and his wife filed the instant action in
district court on June 30, 2000. They named as defendants the
Lottery Commission; appellee Shannon O'Brien, the Massachusetts
State Treasurer and Chairman of the Lottery Commission; Mitchell;
and appellee Dwight Robson, a spokesperson for the Lottery
Commission. The amended complaint contained claims for violation
of 42 U.S.C. § 1983; violation of the Massachusetts Civil Rights
Act, Mass. Gen. Laws ch. 12, § 11I; defamation; tortious
interference with contractual relations; invasion of privacy; and
loss of consortium.
On February 23, 2001, the district court dismissed all
claims against the Lottery Commission as barred by the Eleventh
Amendment. Later, the district court also dismissed all claims
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asserted against the remaining defendants in their official
capacities.
Shortly after the arbitrator rendered his decision, the
remaining defendants moved for summary judgment on all claims. On
June 27, 2001, the district court, in a ruling from the bench,
granted the motion for summary judgment as to the § 1983 claims.
Exercising its discretion under 28 U.S.C. § 1367(c), the district
court also dismissed the remaining state-law claims without
prejudice, giving Wojcik and his wife an opportunity to refile
these claims in Massachusetts Superior Court. Although they did
not avail themselves of this opportunity, a timely appeal to this
Court followed.
II.
Wojcik seeks review of several of the district court's
rulings. He asserts error in the district court's conclusion that
the Lottery Commission is immune from suit under the Eleventh
Amendment. He also challenges the district court's grant of
summary judgment with respect to each of his three claims of a
constitutional violation.
A.
The standard of review is not in dispute. Whether the
district court correctly applied the immunity doctrine under the
Eleventh Amendment is a question of law that engenders de novo
review on appeal. Arecibo Cmty. Health Care, Inc. v. Puerto Rico,
270 F.3d 17, 22 (1st Cir. 2001).
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Likewise, we review the district court's ruling on
summary judgment de novo. Straughn v. Delta Air Lines, Inc., 250
F.3d 23, 33 (1st Cir. 2001). Summary judgment is appropriate when
"the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law." Barbour
v. Dynamics Research Corp., 63 F.3d 32, 36 (1st Cir. 1995) (quoting
Fed. R. Civ. P. 56(c)). The record evidence must be construed "in
the light most favorable to, and drawing all reasonable inferences
in favor of, the nonmoving party." Feliciano de la Cruz v. El
Conquistador Resort & Country Club, 218 F.3d 1, 5 (1st Cir. 2000).
B.
As a general matter, "states are immune under the
Eleventh Amendment from private suit in the federal courts, absent
their consent." Greenless v. Almond, 277 F.3d 601, 606 (1st Cir.
2002). This immunity extends to any entity that is an "arm of the
state." In re San Juan Dupont Plaza Hotel Fire Litig., 888 F.2d
940, 942 (lst Cir. 1989); see also Mt. Healthy City Sch. Dist. Bd.
of Educ. v. Doyle, 429 U.S. 274, 280 (1977) (holding that an "arm
of the state" partakes of the state's sovereign immunity, but that
such immunity does not extend to municipal corporations or other
political subdivisions). Before moving to the merits of Wojcik's
federal claims, we address the threshold question of whether the
Lottery Commission is an "arm of the state" and therefore immune
from Wojcik's suit in federal court.
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To determine whether an entity is an "arm of the state"
entitled to immunity, we apply a multi-factor analysis comprised of
the following inquiries:
(1) whether the agency has the funding power
to enable it to satisfy judgments without
direct state participation or guarantees; (2)
whether the agency's function is governmental
or proprietary; (3) whether the agency is
separately incorporated; (4) whether the state
exerts control over the agency, and if so, to
what extent; (5) whether the agency has the
power to sue, be sued, and enter contracts in
its own name and right; (6) whether the
agency's property is subject to state
taxation; and (7) whether the state has
immunized itself from responsibility for the
agency's acts or omissions.
Metcalf & Eddy, Inc. v. P.R. Aqueduct & Sewer Auth., 991 F.2d 935,
939-40 (1st Cir. 1993). The entity asserting its immunity bears
the burden of showing that it is an arm of the state. Gragg v. Ky.
Cabinet for Workforce Dev., 289 F.3d 958, 963 (6th Cir. 2002).
With respect to its ability to satisfy a judgment, see
Metcalf & Eddy, 991 F.2d at 939, the Lottery Commission points to
the fact that its budget must be approved and appropriated by the
legislature on an annual basis. See Mass. Gen. Laws ch. 10, § 25.
The start-up budget disbursement is then paid back to the general
fisc as the Lottery makes money during the year. The Lottery
Commission does not have the power to issue bonds to raise revenue
for its operations. Thus, any unanticipated expenditures or
judgments against the Lottery Commission must be paid out of its
appropriated annual budget, and any need for spending above the
appropriated amount would require an additional appropriation from
the legislature and approval from the governor. This demonstrates
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the Lottery Commission's limited ability to satisfy a judgment
without drawing upon the state's fisc.
As for whether the Lottery Commission's "function[s]
[are] governmental or proprietary," Metcalf & Eddy, 991 F.2d at
939, we think that this factor also favors recognizing immunity.
The Lottery Commission is responsible under state law for
"conduct[ing] a state lottery" and establishing a fund consisting
"of all revenues received from the sale of lottery tickets . . .
[i]n order to provide local property tax relief [to Massachusetts
municipalities] and continue services at the local level." Mass.
Gen. Laws ch. 10, §§ 24, 35. This revenue-raising function is
decidedly governmental in nature. Cf. Bretton v. State Lottery
Comm'n, 673 N.E.2d 76, 79 (Mass. App. Ct. 1996) ("The [Lottery
Commission's] activities . . . are driven by legislative mandate,
not business or personal objectives," and "[its] activities hardly
resemble endeavors conducted in a conventional business context.").
The Lottery Commission exercises certain ancillary powers
that also support this conclusion. For instance, the Lottery
Commission has quasi-judicial powers to resolve disputes involving
"any matter over which it has jurisdiction, control or
supervision," Mass. Gen. Laws ch. 10, § 24, and its decisions in
such disputes are subject to judicial review by the state courts
pursuant to the Massachusetts Administrative Procedure Act, Mass.
Gen. Laws ch. 30A, § 14. See Bretton, 673 N.E.2d at 80. We
therefore conclude that the Lottery Commission's operations are
more governmental than proprietary in nature.
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It is also clear under Massachusetts law that the Lottery
Commission "is [not] separately incorporated." Metcalf & Eddy, 991
F.2d at 940. Instead, the Lottery Commission was established as a
division of the Massachusetts Treasury Department. See Mass. Gen.
Laws ch. 10, § 23. The State Treasurer, an elected official, is
required by law to serve as the chairman of the Lottery Commission,
and the remaining board members consist of the Secretary of Public
Safety or his designee, the State Comptroller or his designee, and
two persons appointed by the Governor. See id.
Furthermore, the structure of the Lottery Commission
reflects the significant degree of control the state retains over
its operations. See Metcalf & Eddy, 991 F.2d at 940. As noted
above, the annual budget for the Lottery must be approved by
legislative action, and the Lottery Commission's governing
officials are either elected by the public or appointed by the
Governor. In addition, the State Treasurer's authority to appoint
a director of the Lottery Commission is subject to the approval of
the governor. See Mass. Gen. Laws ch. 10, § 26.
The Lottery Commission's ability to enter into contracts
is limited. See Metcalf & Eddy, 991 F.2d at 940. It does not have
the power to lease real property in its own name; instead, the
state leases such property through its Department of Capital Asset
Management, an agency within the Governor's Executive Office of
Administration and Finance.
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Lastly, we detect nothing in Massachusetts law evincing
the state's intention to immunize itself from responsibility for
the Lottery Commission's acts or omissions. See id.
Viewed in their totality, the relevant factors clearly
point in the direction of recognizing the Lottery Commission as an
"arm of the state" entitled to immunity under the Eleventh
Amendment.2 Appellant, however, disputes this conclusion by
relying on a district court case which held that, under Rhode
Island law, the Rhode Island Lottery Commission is not an "arm of
the state" entitled to sovereign immunity. R.I. ACLU v. R.I.
Lottery Comm'n, 553 F. Supp. 752, 763-66 (D.R.I. 1982). As
appellant notes, we have cited this opinion with approval as
recently as last year. See Hawkins v. R.I. Lottery Comm'n, 238
F.3d 112, 116 (1st Cir. 2001). Nonetheless, we do not view the
Rhode Island case as controlling.
We are obviously not bound by the decisions of our lower
courts. See Calaf v. González, 127 F.2d 934, 938 (1st Cir. 1942);
see also In re Executive Office of President, 215 F.3d 20, 24 (D.C.
Cir. 2000) ("District Court decisions do not establish the law of
the circuit, nor, indeed, do they even establish the law of the
district." (citations and quotation marks omitted)). And on the
issues before us, the Eleventh Amendment demands a case-by-case
inquiry into the specific structure and functions of the public
2
The appellees offer no evidence either way as to the tax
treatment of the Lottery Commission's property. See Metcalf &
Eddy, 991 F.2d at 940. This factor therefore plays no role in our
calculus.
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entity in question. Gross generalizations about entities
performing similar functions in different states are not helpful.
Compare R.I. ACLU, 553 F. Supp. at 763-66 (holding that the Rhode
Island Lottery Commission is not an "arm of the state"), with
Jeffries v. Celeste, 654 F. Supp. 305, 307 (S.D. Ohio. 1986)
(holding that officials of the Ohio Lottery Commission were immune
from damages in their official capacities), Malone v. Schenk, 638
F. Supp. 423, (C.D. Ill. 1985) (holding that the Illinois Lottery
Division partakes of the state's Eleventh Amendment immunity), and
Ruman v. Pa. Dep't of Rev., 462 F. Supp. 1355 (M.D. Pa.) (same with
regard to the Pennsylvania Bureau of State Lotteries), aff'd, 612
F.2d 574 (3d Cir. 1979).
Regardless of whether the Rhode Island decision is
correct on its own facts, it is clearly distinguishable from the
case at hand. There, the court held that the Rhode Island Lottery
Commission "is fiscally and operationally autonomous from the State
of Rhode Island." R.I. ACLU, 553 F. Supp. at 765. In particular,
the court determined that the Rhode Island Lottery Commission "is
essentially run like a private business," in that it "sets its own
budget, has complete control over its expenditures, and finances
its operational expenses entirely out of the revenue it generates."
Id. at 764. In addition, it "possesses the power and resources to
pay a judgment against it without prior approval from the state
legislature or any other governmental officer or entity." Id. at
765. By contrast, the operations of the Massachusetts Lottery
Commission are subject to significant control by the state
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government, which approves and appropriates the Lottery
Commission's annual budget. Any adverse judgment that could not be
satisfied out of that budget would require additional approval and
appropriation of state funds. We therefore conclude that the
Lottery Commission qualifies as an "arm of the state" for purposes
of the Eleventh Amendment.
C.
Having determined that the Lottery Commission is immune
from suit, we now turn to appellant's federal constitutional claims
against the individual appellees. Appellant advanced three federal
claims, all under the umbrella of 42 U.S.C. § 1983. First, Wojcik
contends that he was deprived of a protected property interest
without due process. Second, he claims a deprivation of a
protected liberty interest without due process. And third, he
argues a violation of the constitutional guarantee of equal
protection. We address each claim separately.
1.
In order to maintain a constitutional due process claim
arising out of the termination of his employment, a public employee
must first demonstrate that he has a reasonable expectation,
arising out of a statute, policy, rule, or contract, that he will
continue to be employed. Perkins v. Bd. of Dirs., 686 F.2d 49, 51
(1st Cir. 1982). The employee must also demonstrate that he was
deprived of that property interest without the minimum amount of
process that was due under the Constitution -- in this context, the
required process includes "some kind of hearing" and "some
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pretermination opportunity to respond." Cleveland Bd. of Educ. v.
Loudermill, 470 U.S. 532, 542 (1985); see also Gilbert v. Homar,
520 U.S. 924, 929 (1997).
We determine the claim of a protected property interest
"by reference to state law." Bishop v. Wood, 426 U.S. 341, 344
(1976). Wojcik argues that his reasonable expectation of continued
employment was fostered by the collective-bargaining agreement
between the Lottery Commission and the Union. The agreement
provided that covered employees cannot be terminated "without just
cause." It is undisputed that the collective-bargaining agreement
in place was valid and enforceable under Massachusetts law. See
Mass. Gen. Laws ch. 150E, §§ 1-15 (providing for public-sector
collective bargaining); see also Mass. Gen. Laws ch. 150C, §§ 1-16
(providing for binding arbitration of disputes arising under
public-sector collective-bargaining agreements). Moreover, this
Court has said that, "ordinarily, one who can be removed only for
'cause' has a constitutionally protected 'property' interest."
Perkins, 686 F.2d at 51. We therefore conclude that Wojcik had a
protected property interest in his continued employment. Cf.
Ciambriello v. County of Nassau, 292 F.3d 307, 318 (2d Cir. 2002)
(recognizing that a collective-bargaining agreement gives rise to
a property interest in continued employment under New York law).
Our inquiry is not at an end, however. There remains the
significant question of whether Wojcik was provided with the
constitutionally adequate procedural safeguards. We conclude that
he was. First, he was given an opportunity to respond to the
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allegations of misconduct prior to his termination. See
Loudermill, 470 U.S. at 545-46 (noting that the pretermination
hearing need only be "an initial check against mistaken
decisions"). It is undisputed that, when initially confronted and
questioned by investigators from the Lottery Commission, Wojcik was
given the chance to explain his actions, and he denied the
allegation that he had played scratch tickets in violation of
Lottery Commission policy. Second, the full arbitration hearing
afforded by the collective-bargaining agreement was more than
sufficient to satisfy the requirement for a post-deprivation
hearing. See O'Neil v. Baker, 210 F.3d 41, 49 (1st Cir. 2000)
(holding that arbitration of public employee's termination
grievance satisfies the requirements of due process). Wojcik was
represented by his own attorney in the arbitration, and he had
ample opportunity to test both the fairness of his termination and
the quality of the evidence offered against him. We therefore
affirm the district court's granting of summary judgment on
appellant's property-interest claim.
2.
Wojcik argues next that the district court erroneously
granted summary judgment on his constitutional liberty-interest
claim. The gravamen of this claim is that appellees were
responsible for the publication of false and harmful accusations
that Wojcik was involved in the theft of lottery tickets.
It is beyond cavil that "defamation, even from the lips
of a government actor, does not in and of itself transgress
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constitutionally assured rights." Pendleton v. Haverhill, 156 F.3d
57, 62-63 (1st Cir. 1998); see also Paul v. Davis, 424 U.S. 693,
700-01 (1976). However, an exception to this general rule exists
where a public-sector employer creates and disseminates a false and
defamatory impression about an employee in connection with the
employee's discharge. Bd. of Regents v. Roth, 408 U.S. 564, 573
(1972). In such circumstances, the Constitution's due process
protections require the employer to provide the employee with an
opportunity to dispute the defamatory allegations. Codd v. Velger,
429 U.S. 624, 627-28 (1977). The employer's failure to provide an
adequate name-clearing forum is actionable under § 1983.
In order to successfully establish a claim for the
deprivation of a liberty interest without due process, we require
the employee to satisfy five elements. First, the alleged
statements must level a "charge against [the employee] that might
seriously damage his standing and associations in his community"
and place his "good name, reputation, honor, or integrity . . . at
stake." Roth 408 U.S. at 573. Statements merely indicating the
employee's improper or inadequate performance, incompetence, or
neglect of duty are not sufficiently serious to trigger the liberty
interest protected by the Constitution. Second, the employee must
dispute the charges made against him as false. Codd, 429 U.S. at
627-28. Third, the stigmatizing statements or charges must have
been intentionally publicized by the government. Bishop, 426 U.S
at 348-49. That is, the defamatory charges must have been aired
"in a formal setting (and not merely the result of unauthorized
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'leaks')." Silva v. Worden, 130 F.3d 26, 32-33 (1st Cir. 1997).
Fourth, the stigmatizing statements must have been made in
conjunction with an alteration of the employee's legal status, such
as the termination of his employment. Siegert v. Gilley, 500 U.S.
226, 234 (1991); Pendleton, 156 F.3d at 63. Finally, the
government must have failed to comply with the employee's request
for an adequate name-clearing opportunity. See Quinn v. Shirey,
293 F.3d 315, 320 (6th Cir. 2002) ("It is the denial of the
name-clearing hearing that causes the deprivation of the liberty
interest without due process."). The purpose of the hearing is
only to allow the employee to clear his name of the false charges;
compliance with formal procedures is not necessarily required. See
Baden v. Koch, 799 F.2d 825, 833 (2d Cir. 1986) (citing Henry J.
Friendly, Some Kind of Hearing, 123 U. Pa. L. Rev. 1267, 1270, 1281
(1975)); see also Quinn, 293 F.3d at 321.
In this case, there is no doubt that an allegation that
Wojcik engaged in theft would be sufficiently stigmatizing to
satisfy the first element of a liberty-interest claim. Likewise,
there is no dispute that such a charge would be false: although
Wojcik was found to have played scratch tickets in violation of
state law, there was no evidence linking him to the eleven stolen
books of tickets. The liberty-interest claim falters, however, at
the third hurdle -- the requirement that the stigmatizing
statements were intentionally publicized by the government.
Wojcik has failed to adduce any evidence that the
allegedly stigmatizing statements were disseminated by government
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actors in a formal setting. See Silva, 130 F.3d at 32-33. Indeed,
as far as the record discloses, the defamatory statements were not
made by the appellees at all.3 Rather, the statements were those
of newspaper reporters who hastily (and incorrectly) drew a
connection between the disappearance of the eleven books of lottery
tickets and Wojcik's suspension and subsequent termination. The
appellees' consistent stance throughout these goings-on was that
Wojcik was investigated and terminated "for violation of Lottery
policies and procedures." Appellees' statements were undeniably
true, regardless of whether the news media later reported on them
in a manner that erroneously suggested a more serious degree of
wrongdoing on Wojcik's part. Although Wojcik faults appellees for
failing to alert the news media to the mistake, there is nothing in
the Constitution that compels government actors to take such steps.
We therefore affirm the district court's ruling with respect to
Wojcik's liberty-interest claim.4
3
Wojcik contends that some stigmatizing statements in the news
media attributed to "sources" were, in fact, statements made by, or
authorized by, the appellees. However, the summary judgment
protocol demands that Wojcik produce actual evidence in support of
this claim. Since he offers only speculation, rather than hard
facts, we can only view these statements as non-actionable
"unauthorized 'leaks.'" Silva, 130 F.3d at 33.
4
In its ruling from the bench, the district court determined that
Wojcik's liberty-interest claim is barred by the so-called
Parratt-Hudson doctrine. See Parratt v. Taylor, 451 U.S. 527
(1981); Hudson v. Palmer, 468 U.S. 517 (1984). This Court
summarized the Parratt-Hudson doctrine as follows: "When a
deprivation of a property interest is occasioned by random and
unauthorized conduct by state officials, . . . the [Supreme] Court
has repeatedly emphasized that the due process inquiry is limited
to the issue of the adequacy of postdeprivation remedies provided
by the state." Lowe v. Scott, 959 F.2d 323, 340 (1st Cir. 1992).
Since we may affirm on any ground supported by the record and
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3.
Finally, Wojcik contends that he had a viable equal
protection claim based on the selective enforcement of the lottery-
playing ban against him. The Supreme Court has "recognized
successful equal protection claims brought by a 'class of one,'
where [a] plaintiff alleges that [he] has been intentionally
treated differently from others similarly situated and . . . there
is no rational basis for the difference in treatment." Village of
Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per curiam).
Wojcik argues that the district court erred in granting
summary judgment on the equal protection claim because it should
have been up to the jury to decide whether there was a rational
basis for the Lottery Commission to enforce a rule against Wojcik
that allegedly had not been enforced against others. We find these
contentions hollow and affirm the judgment of the district court.
The legal test we apply to the appellees' conduct is an
exceptionally deferential one. An equal protection claim will only
succeed if the decision to treat an individual differently than
those similarly situated is wholly "arbitrary or irrational." Me.
Cent. R.R. Co. v. Bhd. of Maint. of Way Employees, 813 F.2d 484,
492 (1st Cir. 1987). In this case, appellant has failed to
identify specific evidence concerning similarly situated
individuals who received more lenient treatment. More importantly,
fairly presented to the court below, see Rogers v. Vicuna, 264 F.3d
1, 5 (1st Cir. 2001), we have no occasion to pass on the
application of the Parratt-Hudson doctrine to the liberty-interest
claim.
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he has failed to adduce evidence of an arbitrary or irrational
motive for the termination order.
To begin with, appellant's claim of selective prosecution
was presented to, and rejected by, the arbitrator in his
termination grievance. The arbitrator concluded that there was "no
credible evidence . . . to support [Wojcik's] contention [that he
had received] disparate treatment" from the Lottery Commission.
The arbitrator found that the Lottery Commission introduced
"significant evidence" during the arbitration hearing demonstrating
"that [it had imposed] similar discipline" on others who played
lottery games. Although the arbitrator's factual findings are not
dispositive, they may be entitled to great weight. McDonald v.
City of W. Branch, 466 U.S. 284, 292 n.13 (1984). In contrast to
the arbitrator's findings, Wojcik's brief makes only vague
allusions to individuals treated more leniently, while failing to
back them up with sufficient argument and record citation. See
United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990)
(explaining that we do not consider arguments that are undeveloped
on appeal).
As for appellees' allegedly irrational and arbitrary
motivation, Wojcik contends that they made the decision to
terminate him in order to protect the "public perception" of the
Lottery. Although there is some evidentiary support for such a
claim, there is simply nothing irrational about acting on that
basis. The success of the Lottery depends on a widely held belief
that the game is fairly and honestly administered. People will not
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play the game (and no lottery revenues will be raised) if everyone
believes that "the fix is in." Thus, when Lottery Commission
officials were notified that one of their offices appeared to be
rife with scandal and corruption, the responsible officials
rationally decided to take swift and visible action to restore the
public's confidence.
It is noteworthy, too, that appellees were acting on more
than mere "perception[s]." Wojcik admits that he violated state
law and the Lottery Commission's rules: he played scratch tickets
in violation of Mass. Gen. Laws ch. 10, § 31; he took advantage of
his position to improve his chances of winning by playing only
tickets off of rolls where there had not yet been a winning ticket;
and he engaged in dishonesty by having his relative cash a winning
ticket. Given such clear instances of abuse, we see nothing
irrational motivating appellees' actions, even though Wojcik was
not responsible for outright theft.
III.
For the reasons given above, the judgment of the district
court is affirmed. Costs are taxed against the appellant. See
Fed. R. App. P. 39(a)(2).
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