Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 07-2382
BRUCE JACKSON,
Plaintiff, Appellant,
v.
LINDSAY NORMAN, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge]
Before
Lynch, Circuit Judge,
Selya, Senior Circuit Judge,
and Howard, Circuit Judge.
Sam Silverman on brief for appellant.
Teresa Walsh, Assistant Attorney General, and Martha Coakley,
Attorney General, on Motion for Summary Disposition for appellees.
February 15, 2008
Per Curiam. Plaintiff-appellant Bruce Jackson appeals
from the district court's entry of summary judgment in favor of
defendants, denying his claims, pursuant to 42 U.S.C. § 1983, that
his termination from employment as a tenured professor at the
Massachusetts Bay Community college ("MBCC") violated his due
process and equal protection rights. Jackson, following
arbitration, has been reinstated to his former position with MBCC,
awarded back pay and benefits for the time that he was off the
payroll, and reimbursed for medical expenses incurred. He
continued to pursue the present claims in an effort to obtain
damages and attorneys' fees.
"We review de novo a district court's entry of summary
judgment. Like the district court we take the facts of record in
the light most favorable to the nonmovant . . . and draw all
reasonable inferences in his favor. Summary judgment is
appropriate only when the record 'show[s] 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.' Fed.R.Civ.P. 56(c)." Cash v. Cycle
Craft Co., 508 F.3d 680, 682 (1st Cir. 2007). In opposing
defendants' motion for summary judgment and in support of his
cross-motion for summary judgment, Jackson relied largely upon the
arbitrator's findings in the Arbitration Opinion and Award.
"Although the arbitrator's factual findings are not dispositive,
they may be entitled to great weight." Wojcik v. Massachusetts
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State Lottery Comm'n, 300 F.3d 92, 105 (1st Cir. 2002) (citing
McDonald v. City of W. Branch, 466 U.S. 284, 292 n.13 (1984)).
I. Procedural Due Process
At the pre-termination stage, due process requires that
"[t]he tenured public employee [receive] oral or written notice of
the charges against him, an explanation of the employer's evidence,
and an opportunity to present his side of the story." Cleveland Bd.
of Educ. v. Loudermill, 470 U.S. 532, 546(1985). Jackson argues on
appeal that the district court erred in entering summary judgment
in favor of defendants on his due process claim because his pre-
termination hearing was not held before an "impartial" hearing
officer, and because he did not receive the requisite pre-
termination notice that the charges against him might result in his
dismissal. Neither argument has merit.
A. Impartial Hearing Officer
"We have held that there is no requirement that the
hearing officer be impartial; indeed, the terminating employer may
preside. . . . But that impartiality is not demanded does not
itself determine whether bias can be so severe as to interfere with
due process at the hearing itself." Chmielinski v. Massachusetts,
___ F.3d ___, 2008 WL 171099, at *7 (1st Cir. Jan. 22, 2008). To
demonstrate such a due process violation, however, the plaintiff
would have to show that the alleged bias "deprived him of the
opportunity to put his facts before the decisionmaker, or that
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there was an[] error of primary facts in the grounds used for
termination that could be explained only by bias." Id.
As the district court found, and the record supports,
Jackson "had the opportunity to present testimony and cross-examine
witnesses" at his pre-termination hearing. And the record does not
reveal erroneous factual findings at the pre-termination stage that
could be explained only by bias. Although the arbitrator concluded
that there was not just cause to dismiss Jackson, she did not find
that the charges were without any factual basis. Instead, the
arbitrator's conclusion of no "just cause" was largely based on her
finding that MBCC had not put Jackson on notice in the years
leading up to his dismissal that the underlying conduct charged was
inappropriate and, if continued, could result in dismissal.
Moreover, as in Chmielinski, the post-termination procedures
(arbitration) provided an adequate means for Jackson to complain
about the decisionmaker's alleged bias. See id. at *7 n.6.
B. Pre-Termination Notice
Appellant argues that he did not receive the notice
required by the due process clause, relying upon this court's
decision in Cotnoir v. Univ. of Me. Sys., 35 F.3d 6 (1st Cir.
1994). Cotnoir held that under Loudermill, pre-termination notice
must include "notice of the charges alleged against [the employee]
and any proposed action the official intends to take, based on
those charges." Id. at 11. The record, viewed in the light most
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favorable to Jackson, establishes that he received the requisite
notice. Jackson was dismissed on August 8, 2002, after a three-day
evidentiary hearing. In the spring prior to his dismissal, he
received two letters notifying him of the charges against him and
the possibility that he would be dismissed. The complaint itself
states that "[i]n the spring of 2002, Dr. Norman apprised Dr.
Jackson of his intention to terminate his employment." And the
Arbitration Opinion and Award found that "[b]y letter dated June
28, 2002, President Norman notified Dr. Jackson that he was
recommending Dr. Jackson's dismissal based on the following charges
[followed by a listing of the charges]."
To the extent that Jackson relies upon the arbitrator's
findings to establish that the requisite notice was not provided,
that reliance is misplaced. The arbitrator found that the notice
of what was expected of Jackson as a Professor in the years leading
up to his dismissal was inadequate, weakening MBCC's argument that
there was just cause for dismissal. The element of notice required
to establish "just cause" for termination is an entirely separate
standard from the requirement of pre-termination notice under the
due process clause. The arbitrator was not presented with the
question, and did not decide, whether Jackson received the
requisite notice under the due process clause that he might face
termination for the charged conduct.
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II. Equal Protection "Class of One"
An equal protection "class of one" claim "is cognizable
when - and only when - a 'plaintiff alleges that she has been
intentionally treated differently from others similarly situated
and that there is no rational basis for the difference in
treatment.' At the summary judgment stage, of course, this
allegation must be backed by competent evidence." Cordi-Allen v.
Conlon, 494 F.3d 245, 250 (1st Cir. 2007) (quoting Village of
Willowbrook v. Olech, 528 U.S. 562, 564 (2000)(per curiam)). In an
attempt to carry that burden, Jackson has identified three
incidents of complaints against MBCC professors that allegedly were
not treated in the same manner as the student complaint against
him. Viewing the evidence in the light most favorable to Jackson,
the record does not support a finding that there was the requisite
degree of similarity between Jackson's circumstances and those of
the other MBCC instructors to whom he seeks to compare himself.
Appellant also appeals from the district court's denial
of 1) his motion for default judgment and 2) his motion for
disqualification of defendants' counsel, the Massachusetts Attorney
General's Office. Neither claim has merit.
In their motion to allow a late filing of their answer,
nunc pro tunc, defendants claimed that there was "excusable
neglect" under Rule 6(b) because "due to the absence of a pertinent
entry in the office's case management system, undersigned counsel
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missed the deadline to file an answer and filed it upon discovering
the error." "The district court is afforded great leeway in
granting or refusing enlargements . . . and its decisions are
reviewable only for abuse of that discretion." Maldonado-Denis v.
Castillo-Rodriguez, 23 F.3d 576, 583-84 (1st Cir. 1994). "The
Supreme Court has held that the term 'excusable neglect' should be
interpreted flexibly. See Pioneer Inv. Servs. Co. v. Brunswick
Assocs. Ltd. P'ship, 507 U.S. 380, 389 (1993)." Benitez-Garcia v.
Gonzalez-Vega, 468 F.3d 1, 6 n.8 (1st Cir. 2006). And this court
has said that "'[a] default judgment is itself a drastic sanction
that should be employed only in an extreme situation.'" Coyante v.
P.R. Ports Auth., 105 F.3d 17, 23 (1st Cir. 1997). For the reasons
stated in defendants' motion to allow a late filing and opposition
to the motion for default judgment, the district court did not
abuse its discretion in determining that this was not such a
situation.
Appellant's claim that the district court erred in
denying his motion to disqualify the Massachusetts Attorney
General's Office from representing the defendants is frivolous.
In his opposition to appellees' motion for summary disposition,
Jackson accepts that the Attorney General's Office has authority to
represent the defendants. He maintains that "the issue here is
whether the statutory procedures were followed." The procedures
which Jackson claims were violated are contained in M.G.L. ch. 12
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§3E, which applies to actions against "an officer or employee of
any agency within the executive office of health and human services
or the department of education." Id. § 3E. As the appellees have
pointed out, and appellant has not disputed, the MBCC is not an
agency within either of the named departments. Therefore, the
statutory procedure that Jackson claims was not followed does not
apply to the Attorney General's representation of these defendants.
Appellees' motion for summary disposition is granted and
the district court's judgment granting their motion for summary
judgment is affirmed. See 1st Cir. R. 27.0(c).
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