Burton v. Town of Littleton

• Decision Date: 14 October 2005
• Docket Number: No. 05-1015.,05-1015.
• Citation: 426 F.3d 9
• Parties: FRAN BURTON, Plaintiff, Appellant, v. TOWN OF LITTLETON, VINCENT FRANCO, and GERARD DERY, Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

426 F.3d 9

FRAN BURTON, Plaintiff, Appellant, v. TOWN OF LITTLETON, VINCENT FRANCO, and GERARD DERY, Defendants, Appellees.

No. 05-1015.

United States Court of Appeals, First Circuit.

Heard September 15, 2005.

Decided October 14, 2005.

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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.

Before SELYA and LYNCH, Circuit Judges, and RESTANI,^* Judge.

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, 92 S.Ct. 2701, 33 L.Ed.2d 548 (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 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

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.

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."

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.

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 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, 92 S.Ct. 2701. 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...