Wojcik v. Massachusettts State Lottery Commission

          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.

                                       -2-
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


                                        -3-
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


                                     -5-
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

                                      -6-
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).



                                   -7-
            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.

                                        -8-
          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

                                  -9-
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.


                                    -10-
            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.




                                  -11-
             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.

                                      -12-
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


                                    -13-
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

                                       -14-
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


                                   -15-
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

                                            -16-
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


                                   -17-
'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


                                            -18-
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.

                                   -20-
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


                                      -21-
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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