Burton v. Town of Littleton

United States Court of Appeals
For the First Circuit

No. 05-1015

FRAN BURTON,

Plaintiff, Appellant,

v.

TOWN OF LITTLETON, VINCENT FRANCO, and GERARD DERY,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. George A. O'Toole, Jr., U.S. District Judge]

Before

Selya and Lynch, Circuit Judges,
and Restani,* Judge.

Floyd H. Anderson, with whom Law Offices of Floyd H. Anderson,
P.C. was on brief, for appellant.
Patricia M. Rapinchuk, with whom Dorothy Varon and Robinson
Donovan, P.C. were on brief, for appellees.

October 14, 2005

*
Chief Judge of the United States Court of International
Trade, sitting by designation.
 LYNCH, Circuit Judge. This case raises the question of

what constitutes public dissemination of allegedly false and

defamatory information sufficient to trigger due process hearing

protections for public employees. See Bd. of Regents v. Roth, 408

U.S. 564, 573 (1972). The controversy arose from the termination

of Fran Burton from her job as a public school teacher in

Littleton, Massachusetts. The public dissemination is said to be

the sending of a copy of the termination letter by the

superintendent of the local school district to the state

Commissioner of Education. The superintendent copied the letter to

the Commissioner because the basis for the termination was

pertinent to the teacher's certification, which is a responsibility

entrusted to the Commissioner. We hold, on the particular facts of

this case, that no public dissemination occurred and that there was

thus no deprivation of Burton's liberty interests sufficient to

trigger the obligation to have a name-clearing hearing. See Wojcik

v. Mass. State Lottery Comm'n, 300 F.3d 92, 103 (1st Cir. 2002).

We affirm the district court's grant of judgment as a matter of law

in favor of the defendants, which it had issued at the close of

Burton's case-in-chief on both the due process claim and her

related employment discrimination claims.

I.

We recount the evidence in the light most favorable to

the plaintiff. Espada v. Lugo, 312 F.3d 1, 2 (1st Cir. 2002). On

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September 5, 2000, Fran Burton, a licensed teacher and therapist,

was hired as an art teacher at Russell Street Elementary School in

Littleton. Around lunch hour on September 14, 2000, two days after

Burton began teaching at the school, "JH," an eleven-year-old

student in the fifth grade, informed Gerard Dery, the school

principal, that Burton had hit him in art class that morning.

According to JH, he was leaning forward in his seat talking quietly

with another student at his table when Burton approached and

"karate chopped" him three times on his left arm. Burton, he said,

did not seem upset when she struck him; she merely directed him to

sit by himself at an "isolation table." JH indicated that the

physical contact resulted in a brief, "Charley horse" pain, but

that it left no marks or bruises.

Dery reported JH's allegations to Vincent Franco, the

superintendent of the Littleton public schools. Franco, who knew

JH because he had worked with JH's grandfather when the grandfather

served as assistant superintendent, questioned JH again. According

to Dery's incident report, JH retold his story, in a manner

consistent with what he had told Dery, to Franco and JH's father.

Additionally, three of JH's friends, "SJ," "JT," and "KR" -- all of

whom allegedly witnessed the incident -- substantiated his

account.1

1
As we discuss in greater detail below, a fourth student,
"SK," later offered what a Department of Social Services
investigator called "a dramatically different account of what had

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 At the end of the school day, Dery confronted Burton with

the allegations. Burton denied that she had ever hit a student.

She also demanded to confront the complainant, a request that Dery

refused. Dery then placed her on administrative leave pending

further investigation.

On September 18, 2000, Burton called Franco to determine

her status. Franco told her that she was being fired based upon

"creditable" reports that she had hit a student. He said that he

had prepared a letter to Burton formally notifying her of her

termination and explaining the charges against her. He apprised

her that a copy of the letter had been sent to David Driscoll, the

Massachusetts Commissioner of Education, as, indeed, it had been.

He further informed Burton that he had already reported the

incident to the state Department of Social Services (DSS) because

he had "reasonable cause to believe that [her actions]

constitute[d] child abuse within the meaning of" state law. See

Mass. Gen. Laws ch. 119, § 51A. During this conversation, Franco

denied Burton the opportunity to respond further to the allegations

and rebuffed her request to see the evidence against her. Burton

alleges that Franco concluded the call by calling her an "old Jew

bitch," an allegation that we must take as true given the

procedural posture of the case.

happened" when the investigator interviewed him six days after the
incident. No other student came forward regarding the incident.

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 Franco had referred the matter to DSS, which investigates

child abuse allegations, on September 15, 2000. A DSS investigator

conducted interviews with the relevant individuals from September

18 to 25, 2000. In a report dated September 26, 2000, she made the

following determinations: first, the three initial witnesses, all

friends of JH, had spoken with JH before providing identical

accounts of the incident to Dery and the investigator; second, a

guidance counselor observed one of those witnesses, KR, talking and

demonstrating the three "karate chops" to a fourth student, SK,

prior to SK's interview with the investigator; third, SK, who was

interviewed by the investigator but not by Dery or Franco,

nevertheless set forth a markedly different version of the

incident; and fourth, JH had neither asked to see a nurse nor

exhibited any signs of distress during the class that took place in

the interval between Burton's art class and the time he reported

the incident to the principal. On account of these findings, among

others, the DSS investigator concluded that "there is no reasonable

cause to believe that the condition of physical abuse exists." She

made no specific determinations as to whether there was reasonable

cause to support the allegation that Burton had hit JH. The DSS

report was not placed in Burton's personnel file; the only

documentation retained in her file about her termination were

Franco's letter and a form stating that the reason for Burton's

discharge was "hit student."

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 Burton testified at trial that despite persistent

efforts, she has been unable to secure a position as a teacher or

therapist ever since her discharge from the Littleton position.

She attributed her unemployment and accompanying emotional distress

to the accusation against her and the subsequent denial of any

opportunity to refute it.

II.

Burton filed in federal district court an initial

complaint on June 13, 2001 and an amended complaint on April 2,

2002 against Dery, Franco, and the Town of Littleton ("Town"). She

asserted twelve claims, including 42 U.S.C. § 1983 claims against

Dery, Franco, and the Town for violation of her liberty interest

under the Due Process Clause of the Fourteenth Amendment, as well

as religious and age discrimination claims against the Town under

state and federal law.2

Jury trial commenced on November 29, 2004. Upon the

conclusion of Burton's case-in-chief, defendants moved for judgment

as a matter of law on all claims pursuant to Fed. R. Civ. P.

50(a)(1). The district court granted defendants' motion on

December 2, 2004. It also determined that individual defendants

were entitled to qualified immunity for the due process claims.

2
Before trial commenced, Burton agreed to drop the § 1983
claim against Dery.

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 On appeal, Burton claims error in both rulings. She also

asserts that the district court erred in preventing her from

offering evidence with respect to damages. Finding no error on the

part of the district court, we affirm.

III.

Appellate review of the grant of a Rule 50(a) motion is

de novo. Espada, 312 F.3d at 2. We review the evidence, taking

all inferences in favor of Burton, and ask whether a reasonable

jury could have found defendants liable based on the evidence

presented. Isom v. Town of Warren, 360 F.3d 7, 9 (1st Cir. 2004).

A. Due Process Claims

Burton argues that the district court erred in granting

judgment as a matter of law on her due process claims against the

Town and Franco. Burton's complaint is that defendants ought to

have granted her request for a name-clearing hearing, and that

their failure to do so constituted a deprivation of her liberty

actionable under 42 U.S.C. § 1983.

Even where an employee has no property interest in

continued employment,3 there are nonetheless circumstances in which

3
This case does not involve a claim that due process
rights arise from the deprivation of a property interest. Burton
has no property interest in her position, see Mass. Gen. Laws ch.
71, § 42 (requiring written notice of intent to dismiss and
opportunity for review of dismissal only for teachers that have
been in the school system for at least ninety days); Gomez v.
Rivera Rodriguez, 344 F.3d 103, 111 (1st Cir. 2003) ("Under
ordinary circumstances, an at-will employee lacks a reasonable
expectation of continued employment (and, thus, has no property

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a public employer's decision to discharge an employee "may damage

the employee's reputation to such an extent that his 'liberty' to

seek another job is significantly impaired." Ortega-Rosario v.

Alvarado-Ortiz, 917 F.2d 71, 74 (1st Cir. 1990); see also Roth, 408

U.S. at 573. Although "neither the termination of employment nor

statements that might be characterized as defamatory are, by

themselves, sufficient to implicate the liberty interest," Ortega-

Rosario, 917 F.2d at 74, "where a public-sector employer creates

and disseminates a false and defamatory impression about an

employee in connection with the employee's discharge," the Due

Process Clause "require[s] the employer to provide the employee

with an opportunity to dispute the defamatory allegations," and the

employer's failure to do so is actionable under § 1983. Wojcik,

300 F.3d at 103. Wojcik discusses the nature of the evidence to be

presented:

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." . . . Second, the employee must
dispute the charges made against him as false.
Third, the stigmatizing statements or charges
must have been intentionally publicized by the
government. That is, the defamatory charges
must have been aired "in a formal setting (and
not merely the result of unauthorized
'leaks')." 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

interest in her job)."), and she makes no claim to that effect.

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 employment. Finally, the government must have
failed to comply with the employee's request
for an adequate name-clearing opportunity.

Id. (alteration and first omission in original) (citations

omitted).

Here, the parties have focused on the third Wojcik

element, the requirement that "the stigmatizing statements or

charges . . . [be] intentionally publicized by the government."

Id. (internal quotation mark omitted).4 But Wojcik was concerned

with a different problem: whether the intentionality requirement of

the public dissemination prong had been met. In Wojcik, the

requirement was not met when the publication was by the media,

which wrongly, and in a defamatory manner, interpreted accurate

statements by the defendant employer. Id. at 103-04. Our law is

that it takes a more formal statement to constitute intentional

publication. See Silva v. Worden, 130 F.3d 26, 32-33 (1st Cir.

1997) (noting that a plaintiff must show that defendants

disseminated the "defamatory charges, in a formal setting (and not

merely as the result of unauthorized 'leaks'), and thereby

significantly have interfered with the employee's ability to find

future employment").

4
There is no dispute that the first two Wojcik elements
are satisfied in this case, although the defendants assert that the
statements at issue were neither false nor defamatory and thus fail
to meet the threshold requirement for a deprivation of liberty
claim under Wojcik. Finding other grounds on which to dispose of
this case, we do not reach this issue.

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 Plaintiff's case presents a different problem than the

intentionality of the employer's dissemination. The only

dissemination Burton points to on appeal is the termination letter

that Franco copied and sent to the Commissioner of Education.5

This dissemination was no doubt intentional. In Bishop v. Wood,

426 U.S. 341 (1976), however, the Supreme Court held that an

employee's liberty interest was not jeopardized where the

intentional dissemination of the reasons for that employee's

discharge was not public. See id. at 348. It is the public

disclosure requirement that is at issue here.

Burton contends that Franco's copying of the letter to

the Commissioner constitutes public dissemination within the

5
In her brief and at trial, Burton emphasized the apparent
lack of established procedures governing what information should be
given out -- and by whom -- when references for teachers were
requested from defendants. Her emphasis on defendants'
recordkeeping policies seems to be an attempt to attribute, without
evidence of actual dissemination, her unemployment to the materials
kept in her personnel file. Our precedents, however, have firmly
established that dissemination cannot be proved by mere innuendo;
the plaintiff must marshal sufficient "evidence to support a
conclusion that any of the prospective employers requested, or that
the defendants divulged, information regarding the circumstances
surrounding [her] termination." Ortega-Rosario, 917 F.2d at 74-75;
cf. Roth, 408 U.S. at 574 ("Mere proof . . . that [plaintiff's]
nonretention in one job, taken alone, might make him somewhat less
attractive to some other employers would hardly establish the kind
of foreclosure of opportunities amounting to a deprivation of
'liberty.'"). No such evidence appears in the record.
Burton also alluded in her complaint and at trial to
comments that Franco and Dery purportedly made to school personnel,
as well as to parents and students involved in the incident, about
the termination of her employment. Burton does not rely on these
alleged comments on appeal, nor would reference to mere rumors or
leaks have been helpful to her § 1983 claim. See Silva, 130 F.3d
at 32-33.

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meaning of Bishop and its progeny because his action put her

reputation and future employment opportunities "at stake" and left

her no longer "as free as before to seek" other employment. Roth,

408 U.S. at 573, 575. We think not, for several reasons.

First, this type of disclosure is not the classic type of

public dissemination we have found actionable. As noted in

Beitzell v. Jeffrey, 643 F.2d 870 (1st Cir. 1981), we typically

have found deprivation of a liberty interest only "when the state

has made seriously defamatory charges in public, for example, at

public meetings or to the press." Id. at 879 (collecting cases).

It would quite stretch the traditional analysis of what is public

to cover the present situation.

There is no reason to make that stretch. Doing so does

nothing to advance the objectives of the doctrine established by

Roth and by Bishop. That doctrine aims to balance two objectives.

It seeks to protect employees from serious harm to their future

employment opportunities. In order for that harm to exist, there

must be sufficient dissemination to actually create such a risk.

The doctrine, however, also seeks to avoid defining public

dissemination so broadly as to impair the normal functioning of

personnel operations in public agencies. Resolution of the tension

between these two objectives will turn on the facts of each case,

and we do not set a template. On the facts here, neither objective

would be served by holding that the sending a copy of the letter to

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the Commissioner, without proof of any further dissemination by the

Commissioner, meets the requirement for public dissemination.

Burton's argument unmoors the language of Roth and Bishop

from its berth in the reasoning of both cases. The constitutional

tort is a narrow one. See Ratliff v. City of Milwaukee, 795 F.2d

612, 626-27 (7th Cir. 1986) ("In a common law defamation action,

any publication of false and defamatory material might be

sufficient, but in the context of the liberty interest protected by

the Fourteenth Amendment, [plaintiff] was required to show broader

publication."). We return to Bishop to explain why.

Bishop is concerned not with hypothetical or merely

possible reputational harms to public employees, but with

significant infringements on their liberty interests. As Bishop

points out, absent public disclosure, there can hardly be any harm.

Bishop, 426 U.S. at 348 (holding that a communication that was not

made public "cannot properly form the basis for a claim that

petitioner's interest in his 'good name, reputation, honor, or

integrity' was thereby impaired" (quoting Wisconsin v.

Constantineau, 400 U.S. 433, 437 (1971))).

Consistent with Bishop, we have emphasized in our caselaw

that public dissemination is the sine qua non of a due process

claim based on reputational harm: "[T]he due process requirement

that [an employee] be afforded a hearing at which he may seek to

clear his name is triggered only if the dismissal is based upon

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false and defamatory charges that are disseminated by the employer

and stigmatize the employee so that the employee's freedom to

obtain alternative employment is significantly impaired." Ortega-

Rosario, 917 F.2d at 74 (emphases added). We have thus rejected

due process claims based on alleged reputational harm where there

was no dissemination to the public or to prospective employers of

the details of plaintiff's termination. See, e.g., Wojcik, 300

F.3d at 103; Silva, 130 F.3d at 33. Accordingly, the placement of

damaging information in a personnel file, without further

dissemination, is not sufficient to trigger the constitutional

tort. See Nethersole v. Bulger, 287 F.3d 15, 21 n.7 (1st Cir.

2002) ("The protection of liberty interests is [not] violated . .

. by the presence of adverse information in a personnel file,

standing alone . . . ." (quoting Hardemon v. City of Boston, 144

F.3d 24, 28 (1st Cir. 1998) (per curiam)) (alteration and omission

in original)); Silva, 130 F.3d at 33; see also Johnson v. Martin,

943 F.2d 15, 17 (7th Cir. 1991).

The letter to the Commissioner, like other personnel

documents, is not a public record under state law and not subject

to public disclosure.6 See Mass. Gen. Laws ch. 4, § 7 (exempting

"personnel . . . files or information" from disclosure under the

public records statute, id. ch. 66, § 10); Wakefield Teachers Ass'n

v. Sch. Comm., 731 N.E.2d 63, 67 (Mass. 2000) (defining "personnel

6
If the Commissioner were obligated to release the
document, this would be a different case.

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[file] or information" to include, at a minimum, "disciplinary

documentation, and . . . termination information pertaining to a

particular employee"). Essentially a form of internal

communication, Franco's copying of the letter to the licensing

authority7 is not public in the same way that correspondence with

a third party such as the media or a prospective employer is

public. Cf. McMath v. City of Gary, 976 F.2d 1026, 1035 (7th Cir.

1992) ("[S]tigmatizing information that has not been disseminated

beyond the proper chain of command has not been made public.");

Ratliff, 795 F.2d at 626-27 (same). Burton was not seeking

employment with the Commissioner of Education, and there is no

evidence that the disclosure to the Commissioner, who could not in

turn release the information to the public, resulted in the

disclosure of information relating to Burton's termination to

potential school system employers. The risk of harm to Burton's

7
The Commissioner is charged with broad oversight of the
educational system, including the authority to grant, suspend, or
revoke licenses of school personnel. See Mass. Gen. Laws ch. 69,
§§ 1A, 1B; id. ch. 71, § 38G. Accordingly, it was reasonable for
Franco to report to him that a teacher was being terminated on
account of behavior that could potentially affect licensure. Cf.
id. ch. 71, § 38G; 603 Mass. Code Regs. 7.14(8)(a). Paul
Livingston, the current superintendent of the Littleton schools and
one of Burton's own witnesses, confirmed that during September
2000, when he was superintendent of another school district in
Massachusetts, he understood that he was obligated to report to the
Commissioner any termination based on an attribute that would
affect licensure. Indeed, later revisions in law, not in effect at
the time, imposed a specific obligation on superintendents to
report exactly such information to the Commissioner. See 603 Mass.
Code Regs. 7.14(8)(h).

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ability to get a job is too ephemeral for this disclosure to

constitute public dissemination under Bishop.8

Bishop's second concern is that the ability of

individuals in defendants' position to communicate within a single

system of employment -- say, between employer and employee -- not

be impaired by an overly broad understanding of what constitutes a

public dissemination. See Bishop, 426 U.S. at 348-49 (declining to

adopt a conception of dissemination that would "penalize forthright

and truthful communication between employer and employee"). In

part for this reason, we have held that where an employer

interviews a relevant witness as part of an investigation, sends a

union representative a copy of a disciplinary letter at the request

of an employee, or passes a termination or disciplinary letter

through the employer's personnel department, there is no public

dissemination. See Silva, 130 F.3d at 29, 33. Burton's theory of

public dissemination ignores these precedents, threatening public

agencies with exactly the sort of micromanagement against which the

8
It is true that loss of certification would have severely
hurt Burton's job prospects as a teacher. But the letter itself
could not have led to such a result; present state regulation
provides for notice and hearing before the Commissioner revokes,
suspends, or limits the license of any teacher, see 604 Mass. Code
Regs. 7.14(8)(c), (e), and there is no claim that such procedures
would not have been used earlier. Having produced no proof of any
other adverse consequences that directly flowed from the
correspondence between Franco and the Commissioner, Burton
"stretches the concept too far [by] suggest[ing] that a person is
deprived of 'liberty' when [she] simply is [terminated] in one job
but remains as free as before to seek another." Roth, 408 U.S. at
575.

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Bishop Court cautioned. See id. at 349-50 ("The federal court is

not the appropriate forum in which to review the multitude of

personnel decisions that are made daily by public agencies.").

Burton's theory of what constitutes public dissemination,

if endorsed, would likely discourage local superintendents from

privately, if officially, communicating appropriate concerns about

teachers to the Commissioner in his capacity as a licensing

authority. See Bishop, 426 U.S. at 348-49. It would also

undermine the state legislature's decision to create a probationary

period in which new teachers can be terminated without process.

See Mass. Gen. Laws ch. 71, § 42; Brennan v. Hendrigan, 888 F.2d

189, 196 (1st Cir. 1989) (declining, where there was no public

dissemination of defamatory charges, to require a name-clearing

hearing, in part because "[t]o require it would simply erase in

many instances the constitutional distinction between the 'at will'

and the 'tenured' employee" (quoting Laureano-Agosto v. Garcia-

Caraballo, 731 F.2d 101, 104-05 (1st Cir. 1984))); see also

Olivieri v. Rodriguez, 122 F.3d 406, 409 (7th Cir. 1997)

(expressing concern that allowing plaintiffs to prove reputational

harm by potential, rather than actual, dissemination "comes close

to arguing that there is no such thing as probationary public

employment").

There is some irony in this case. Burton's lawsuit --

brought, to be sure, after she had difficulty finding work as a

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teacher -- has now made public the reasons for termination of her

employment, as was not true before. Whether the defendants acted

too hastily or unfairly in discharging Burton is not before us.

See Bishop, 426 U.S. at 350 ("The Due Process Clause of the

Fourteenth Amendment is not a guarantee against incorrect or ill-

advised personnel decisions."). On the far narrower issue, which

is before us, of whether Burton has proven public dissemination of

information within the meaning of Roth, we conclude she has not.9

9
Burton makes two additional arguments related to her due
process claim. First, she argues that the district court erred in
granting Franco qualified immunity on the § 1983 claim. Having
declared above that Burton has failed to establish a liberty
interest sufficient to trigger due process protections, we need not
engage the qualified immunity issue. See Ruiz-Casillas v. Camacho-
Morales, 415 F.3d 127, 134 (1st Cir. 2005) ("The failure of
appellant's constitutional claims obviates our need to address the
qualified immunity defense . . . .").
Second, Burton contends that the court made an error on
the admissibility of evidence. She claims that the district court
erred in prohibiting her from offering evidence of damages arising
from her failure to receive a name-clearing hearing. Contrary to
Burton's allegation, on our perusal of the record, we find ample
testimony about damages. The only limitation the district court
issued with respect to damages evidence was to preclude Burton from
entering into evidence job applications that ask the applicant to
self-report her reasons for leaving her previous job. The district
court so ruled because it correctly determined that under both the
Massachusetts state law of defamation and the federal caselaw on §
1983, self-compelled publication is not a cognizable form of
publication or dissemination. See White v. Blue Cross & Blue
Shield of Mass., Inc., 809 N.E.2d 1034, 1038-39 (Mass. 2004);
Silva, 130 F.3d at 32-33; Olivieri, 122 F.3d at 408-09. We find no
error in the district court's refusal to admit the job
applications.

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B. Employment Discrimination Claims

Finally, Burton appeals the district court's grant of

judgment as a matter of law in favor of the defendants on her

claims of religious and age discrimination under Title VII of the

Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1), the Age

Discrimination Employment Act, 29 U.S.C. §§ 621-34, and Mass. Gen.

Laws. ch 151B. The claims rely almost entirely on Franco's

purportedly calling Burton an "old Jew bitch." If made, as we must

assume it was, the statement is reprehensible.

Before the district court, Burton styled her complaint as

a mixed-motive case, see 42 U.S.C. § 2000e-2, and disavowed the

burden-shifting framework of McDonnell Douglas v. Green, 411 U.S.

792 (1973). She maintains this mixed-motive theory on appeal.

Under this theory, she must present evidence of discrimination on

the basis of a forbidden bias, at which point defendants must then

either "deny the validity or the sufficiency of the [employee's]

evidence, and [have] the jury . . . decide[] whether the [employee]

has proved discrimination by a preponderance of the evidence, or

prove that it would have made the same decision even if it had not

taken the protected characteristic into account." Dominguez-Cruz

v. Suttle Caribe, Inc., 202 F.3d 424, 429 (1st Cir. 2000) (second

and third alterations and omission in original) (citation omitted)

(internal quotation marks omitted).

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 The district court concluded that the evidence was

insufficient to permit a rational factfinder to infer

discriminatory intent. We agree.

1. The Evidentiary Standard

We pause to clarify the law on the categories of evidence

that can be used to establish a mixed-motive claim. Burton agreed,

when prompted by the district court, that she was "simply rely[ing]

on the inference from the remark itself as direct evidence" of

discrimination. The district court, in granting defendants' Rule

50(a) motion on the discrimination claims, noted that it was

"accepting the plaintiff's theory that [her claim] rests on the

direct evidence of the remark itself." This court, however,

following the Supreme Court's command in Desert Palace, Inc. v.

Costa, 539 U.S. 90 (2003), has rejected the requirement that there

be direct evidence in mixed-motive cases; any evidence, whether

direct or circumstantial, may be amassed to show, by preponderance,

discriminatory motive. See id. at 101-02; Hillstrom v. Best W. TLC

Hotel, 354 F.3d 27, 30-31 (1st Cir. 2003); see also Beacon Mut.

Ins. Co. v. OneBeacon Ins. Group, 376 F.3d 8, 17 (1st Cir. 2004).

2. Burton's Claim

Even under the more generous Desert Palace standard,

Burton "must present enough evidence to permit a finding that there

was differential treatment in an employment action and that the

adverse employment decision was caused at least in part by a

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forbidden type of bias." Hillstrom, 354 F.3d at 31; see also

Desert Palace, 539 U.S. at 101 (holding that the plaintiff must

"present sufficient evidence for a reasonable jury to conclude, by

a preponderance of the evidence, that race, color, religion, sex,

or national origin was a motivating factor for any employment

practice") (internal quotation marks omitted). Burton's evidence

does not meet this standard.

Franco's derogatory remark came at the end of a testy

phone conversation initiated by plaintiff. Franco delivered the

news to Burton that she was fired. Burton protested and argued

with the result. Franco declined to get into the issue over the

phone. Importantly, the decision to terminate had already been

made before the conversation took place.

Even if the repugnant remark was made, no evidence

establishes a nexus between the termination of Burton's employment

and any discrimination by the defendants. Burton was discharged,

correctly or not, because a student complained, and other students

confirmed, that she had hit him. There is no whiff in the record

of a conspiracy to set up the plaintiff, nor would that theory be

in the least bit credible on the facts here. The evidence does not

permit a finding of discriminatory motivation. After all, the same

set of actors to whom Burton attributes discriminatory animus were

favorably disposed enough toward her to have hired her less than

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two weeks before her termination. Dery and Franco both interviewed

Burton, and Franco's approval was necessary for her hiring.

Based on the record before us, there is simply not enough

evidence of pre-termination animus to establish that Burton's

termination is attributable even in part to a forbidden bias. We

hold that the district court properly rejected the discrimination

claims.

IV.

Judgment for defendants is affirmed. Costs are awarded

to defendants.

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