Chief Judge of the United States Court of International * Trade, sitting by designation. 

# U nit edSta tes C ou rt o f App eal s

For t h e Firs t C ircu it

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. R a p inchuk, with whom Dorothy Varon and Robinson Donovan, P.C. were on brief, for appellees.

October 14, 2005-2- LYNCH, Circuit Judge . This case raises the question of
what cons t i t u t es public dissemination of allegedly false and defamatory information sufficient to trigger due process he a r i ng 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 a s a p ublic 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 dist r i c t to the state Commissioner of Education. The superintendent copied the letter to the Commissio n e r 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 ( 1 s t 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-chie f on both the due process claim and her related employment discrimination claims.
I. We recount the evidence i n t he light most favorable to the plaintiff. Espada v. Lugo, 312 F.3d 1, 2 (1st Cir. 2002). OnAs we discuss in greater detail below, a fourth student, 1 "SK," later offered what a Department of Soc i a l Services investigator called "a dramatically different account of what had -3- 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, t h e 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 w hen 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 "iso l a t ion 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. 1happened" when the investigator interviewed him six days after the

incident. No other student came forward regarding the incident. -4- At the end of the school day, Dery confronted Burton with the allegations. Burto n d e nied 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 termina t i o n 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 "rea s o n able 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.-5- 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 J H , 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 c h ops" to a fourth student, SK, prior to SK's interview with the investigator; third, SK, who was interv i e w e db yt h e i n v e s t i g a t o r b u t n o t b yD e r yo r F r a n c o, nevertheless set forth a markedly diffe r e n t version of the incide n t ; a n d 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 w a s n ot 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."Before trial commenced, Burton agreed to drop the § 1983 2 claim against Dery. -6-

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.

B u rton filed in federal district court an initial complaint on June 13, 2001 and an amended comp l a i n t o n 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 o f 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 indivi d u a l defendants were entitled to qualified immunity for the due process claims.Thi s c a s e does not involve a claim that due process 3 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 r e v iew of dismissal only for teachers that have been in t h e s c h ool system for at least ninety days); Gomez v. Rivera Rodriguez, 344 F.3d 103, 111 (1st Cir. 2003) ("Under ordi n a r yc i r c u m s t a n c e s , a n a t

- w i l l e mp l o y e e l a c k s a r e a s o n a ble expectation of continued employment (and, thus, has no property -7- On appeal, Burton claims error in both rulings. She also
asserts that the district court erred in preventing her f rom 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, 3 1 2 F . 3 dat 2. We review the evidence, taking all inferences in favor of Burton, and ask whether a reasonable jury could have fo u n d d efendants 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.

Ev e n w h e r e a n e mp l o y e e h a s n o p r o p e r t y i n t e r e s t in continued employment, there are nonetheless circumstances in which 3interest in her job)."), and she makes no claim to that effect. -8- 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 t h a t might be characterized as defamatory are, by themselves, sufficient to implicate the liberty interest," OrtegaRosario, 917 F.2d at 74, "w h e r e a public-sector employer creates and disseminates a false and defamatory impression about an employee in connection with the employee's di s c h arge," the Due Process Clause "require[s] the employer to provide the employee with an opportunity to dispute the defamatory allegations," and the employer' s f a ilure 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 “goodname, reputa t i o n , h o n o r , o r i n t e g r i t y. . . 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 hisT h e r e is no dispute that the first two Wojcik elements 4 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. -9- 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 t h ird Wojcik element, the requirement that "th e stigmatizing statements or charges . . . [be] intentionally publicized b y the government." Id. (internal quotation mark omitted). But Wojc i k w a s concerned 4 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 sta t e ment to constitute intentional publ i c a t i o n . S e e S i l v a v . W o r d e n , 1 3 0 F . 3 d 2 6 , 3 2

- 3 3 ( 1st Cir. 1997) (noti n g that a plaintiff must show that defendants disseminated the "defamatory charges, in a formal setting (and not merely as the result of unauthorized 'leaks'), a n dthereby significantly have interfered with the employee's ability to find future employment").In her brief and at trial, Burton emphasized the apparent 5 lack of established procedures governing what information should be given out -- and by whom -- when r e f e r e n c es for teachers were requested from defendants. Her emphasis on def e n d a nts' 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 mar s h a l 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. -10-

Plaintiff's case presents a different p r o b lem than the intentionalit y o f the employer's dissemination. The only dissemination Burton points to on appeal is the termination letter
t h a t F ranco 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

e m p loyee's liberty interest was not jeopardized where the intentional dissemi n a t i o n 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 tha t F ranco's copying of the letter to the Commissioner constitutes public dissemination within the-11-

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 ma d e s e r i o u s l yd e f a m a t o r yc h a r g e s i n p u b l i c , f o r e x a mp l e , 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 doct r i n e 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 b e s u fficient dissemination to actually create such a risk. The doctrine, however, also seeks to avoid d e f ining public dissem i n ation 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-12-

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.

Bish o p is concerned not with hypothetical or merely possible reputational harms to public employ e e s , but with significa n t 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, ho n o r , 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 n o n of a due process claim based on r e p utational harm: "[T]he due process requirement that [an employee] be afforded a hearing at which he may seek to clear his name is triggered o n l y i f t h e dismissal is based uponIf the Commissioner were obligated to r elease the 6 document, this would be a different case. -13- false and defamatory charges that are disseminated by the employer and stigmatize the employee so t h a t the employee's freedom to obtain alternative employment is significantly impaired." OrtegaRos a r i o , 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 per s o n nel file, without further dissemination, is not sufficient to trigger t h e c onstitutional 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, l i k e other personnel documents, is not a public record under state law and not subject to public disclosure. See Mass. Gen. Laws ch. 4, § 7 (exempting 6 "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 "personnelThe Commissioner is charged with broad oversight of the 7 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 b e i n g 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, confirm e d 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). -14- [file] or information" to include, at a m i n i mum, "disciplinary documentation, and . .
. t e r mination information pertaining to a particular employee"). Essentially a form of internal

c o mm unication, Franco's copying of the letter to the licensing authority is not public in the same way that corresponde n c e with

7 a third par t y 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'sIt is true that loss of certification would have severely 8 hurt B u r t o n'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 hear i n g 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 ad verse 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. -15- ability to get a job i s 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-16-

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 wouldalso undermine the state legislature's decision to create a probationary period in which new teachers can be terminated without pr o c ess. See Mass. Gen. Laws ch. 71, § 42; Brennan v. Hendrigan, 888 F.2d 189, 196 (1st Cir. 1989) (declining, where there was no public dissem ination 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. GarciaCaraballo, 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 sh e h a d d i f ficulty finding work as aBurton makes two additional arguments related to her due 9 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 l i berty interest sufficient to trigger due process protections, we need not engage the qualified immunity issue. See Ruiz-Casillas v. CamachoMorales, 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 testim o n y a bout 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-c o m p elled publication is not a cognizable form of publication or dissemination. See White v. Blue Cross & Blue Shield o f M a ss., 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 j ob applications. -17- 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 D u e P r o c ess Clause of theFourteenth Amendment is not a guarantee against incorrect or illadvised 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. 9-18-

B. Employment Discrimination Claims

Finally, Burton appeals t he 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 o r t he sufficiency of the [employee's] evidence, and [have] the jury . . . decide[] whether the [employee] has p r o v e ddiscrimination 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).-19- The district court concluded th a t t h e evidence was insufficien t t o 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 t hat [her claim] rests on the direct evidence of the remark itself." This cour t , however, following the Suprem e 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, 3 0

- 3 1 ( 1 st 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 gener o u s Desert Palace standard, Burton "must present enough evidence to permit a finding that there was differential treatment in an e mployment action and that the adverse employment decision was caused at least in part by a-20-

f o r b i d d e n 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 n a t i onal origin was a motivating factor for any employment practice") (internal quotation marks omitted). Burton's evidence does not meet this standard.

Franco's derogatory rem a r k came at the end of a testy phone conversation initiated by plaintiff. Franc o d elivered the

news t o B u r t o n t h a t s h e w a s f i r e d
. B u r t o n p r o t e s t e d a n dargued with the result. Franco declined to get into the issue over the phone. Importantly, the decision to termina t e had already been made before the conversation took place.

Even if the r e p u gnant 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-21-

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 anim u s 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.