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,
I.
We recount the evidence in the light most favorable to the plaintiff.
Espada v. Lugo,
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 “сreditable” 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 Dris-coll, 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^] child abuse within thе meaning of’ state law. See Mass. Gen. Laws eh. 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.”
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 Deсember 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,
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,
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 mаde in conjunction with an alteration of the employee’s legal status, such as the termination of his 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 defamatоry 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,
Plaintiffs case presents a different problem than the intentionality of the employer’s dissemination. The only dissemination Burton points to on appeal is thе termination letter that Franco copied and sent to the Commissioner of Education.
5
Burton contends that Franco’s copying of the letter to the Commissioner constitutes public dissemination within the 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,
First, this type of disclosure is not the classic type of public dissemination we have found actionable. As noted in
Beitzell v. Jeffrey,
There is no reason to make that stretсh. 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 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,
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,
Consistent with
Bisho-p,
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 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,
The letter to the Commissioner, like other personnel documents, is not a public record under state law and not subject tо 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.,
Bishop’s
second concеrn 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,
Burton’s theory of what constitutes publiс 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,
There is some irony in this case. Burton’s lawsuit — brought, to be sure, after she had difficulty finding work as a teacher — has now made public the reasons for termination of her employment, as was not true before. Whether the defendants аcted too hastily or unfairly in discharging Burton is not before us.
See Bishop,
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)(l), 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 сalling 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,
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 plaintiffs 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,
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 forbidden type of bias.”
Hillstrom,
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 two weeks before her terminаtion. 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-termi-nation animus to establish that Burton’s termination is attributablé 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.
Notes
. 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 happened” when the investigator interviewed him six days after the incident. No other student came forward regarding the incident.
. Before trial commenced, Burton agreed to drop the § 1983 claim against Dery.
. 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,
. 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 Wo-jcik. Finding other grounds on which to dispose of this case, we do not reach this issue.
. 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 prosрective employers requested, or that the defendants divulged, information regarding the circumstances surrounding [her] termination."
Ortega-Rosario,
Burton also alluded in her complaint and at trial to comments that Franco and Dery purportedly made to school persоnnel, 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,
. If the Commissioner were obligated to release the document, this would be a different case.
. 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, imрosed a specific obligation on superintendents to report exactly such information to the Commissioner. See 603 Mass.Code Regs. 7.14(8)(h).
. 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 рroof of any other adverse consequences that directly flowed from the correspondence between Franco and the Commissioner, Burton "stretches the concept too far [by] suggesting] 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,
. 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 interеst sufficient to trigger due process protections, we need not engage the qualified immunity issue.
See Ruiz-Casillas v. Camacho-Morales,
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 damagеs. 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.,