Not for Publication in West's Federal Reporter

          United States Court of Appeals
                        For the First Circuit

No. 07-2382

                              BRUCE JACKSON,

                         Plaintiff, Appellant,

                                      v.

                        LINDSAY NORMAN, ET AL.,

                        Defendants, Appellees.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

                  FOR THE DISTRICT OF MASSACHUSETTS

              [Hon. Rya W. Zobel,       U.S. District Judge]


                                   Before

                        Lynch, Circuit Judge,
                    Selya, Senior Circuit Judge,
                     and Howard, Circuit Judge.



     Sam Silverman on brief for appellant.
     Teresa Walsh, Assistant Attorney General, and Martha Coakley,
Attorney General, on Motion for Summary Disposition for appellees.


                            February 15, 2008
            Per Curiam.      Plaintiff-appellant Bruce Jackson appeals

from the district court's entry of summary judgment in favor of

defendants, denying his claims, pursuant to 42 U.S.C. § 1983, that

his termination from employment as a tenured professor at the

Massachusetts Bay Community college ("MBCC") violated his due

process     and   equal   protection           rights.    Jackson,     following

arbitration, has been reinstated to his former position with MBCC,

awarded back pay and benefits for the time that he was off the

payroll,    and   reimbursed      for    medical     expenses   incurred.      He

continued to pursue the present claims in an effort to obtain

damages and attorneys' fees.

            "We review de novo a district court's entry of summary

judgment.    Like the district court we take the facts of record in

the light most favorable to the nonmovant . . . and draw all

reasonable     inferences    in    his     favor.        Summary    judgment   is

appropriate only when the record 'show[s] that there is no genuine

issue as to any material fact and that the moving party is entitled

to judgment as a matter of law.' Fed.R.Civ.P. 56(c)." Cash v. Cycle

Craft Co., 

, 682 (1st Cir. 2007).                       In opposing

defendants' motion for summary judgment and in support of his

cross-motion for summary judgment, Jackson relied largely upon the

arbitrator's      findings   in    the    Arbitration     Opinion    and   Award.

"Although the arbitrator's factual findings are not dispositive,

they may be entitled to great weight." Wojcik v. Massachusetts


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State Lottery Comm'n, 

, 105 (1st Cir. 2002) (citing

McDonald v. City of W. Branch, 

, 292 n.13 (1984)).

           I. Procedural Due Process

           At the pre-termination stage, due process requires that

"[t]he tenured public employee [receive] oral or written notice of

the charges against him, an explanation of the employer's evidence,

and an opportunity to present his side of the story." Cleveland Bd.

of Educ. v. Loudermill, 

, 546(1985). Jackson argues on

appeal that the district court erred in entering summary judgment

in favor of defendants on his due process claim because his pre-

termination hearing was not held before an "impartial" hearing

officer,   and   because   he   did   not   receive   the   requisite   pre-

termination notice that the charges against him might result in his

dismissal.   Neither argument has merit.

           A. Impartial Hearing Officer

           "We have held that there is no requirement that the

hearing officer be impartial; indeed, the terminating employer may

preside. . . . But that impartiality is not demanded does not

itself determine whether bias can be so severe as to interfere with

due process at the hearing itself." Chmielinski v. Massachusetts,

___ F.3d ___, 

, at *7 (1st Cir. Jan. 22, 2008).            To

demonstrate such a due process violation, however, the plaintiff

would have to show that the alleged bias "deprived him of the

opportunity to put his facts before the decisionmaker, or that


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there was an[] error of primary facts in the grounds used for

termination that could be explained only by bias." 

district court found, and the record supports,

Jackson "had the opportunity to present testimony and cross-examine

witnesses" at his pre-termination hearing. And the record does not

reveal erroneous factual findings at the pre-termination stage that

could be explained only by bias. Although the arbitrator concluded

that there was not just cause to dismiss Jackson, she did not find

that the charges were without any factual basis.              Instead, the

arbitrator's conclusion of no "just cause" was largely based on her

finding that MBCC had not put Jackson on notice in the years

leading up to his dismissal that the underlying conduct charged was

inappropriate    and,   if   continued,     could   result   in   dismissal.

Moreover,   as   in   Chmielinski,    the   post-termination      procedures

(arbitration) provided an adequate means for Jackson to complain

about the decisionmaker's alleged bias. See 

n.6.

            B. Pre-Termination Notice

            Appellant argues that he did not receive the notice

required by the due process clause, relying upon this court's

decision in Cotnoir v. Univ. of Me. Sys., 

(1st Cir.

1994).   Cotnoir held that under Loudermill, pre-termination notice

must include "notice of the charges alleged against [the employee]

and any proposed action the official intends to take, based on

those charges." 

     The record, viewed in the light most


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favorable to Jackson, establishes that he received the requisite

notice. Jackson was dismissed on August 8, 2002, after a three-day

evidentiary hearing.         In the spring prior to his dismissal, he

received two letters notifying him of the charges against him and

the possibility that he would be dismissed.              The complaint itself

states that "[i]n the spring of 2002, Dr. Norman apprised Dr.

Jackson of his intention to terminate his employment." And the

Arbitration Opinion and Award found that "[b]y letter dated June

28,   2002,    President    Norman   notified     Dr.   Jackson   that   he   was

recommending Dr. Jackson's dismissal based on the following charges

[followed by a listing of the charges]."

              To the extent that Jackson relies upon the arbitrator's

findings to establish that the requisite notice was not provided,

that reliance is misplaced.          The arbitrator found that the notice

of what was expected of Jackson as a Professor in the years leading

up to his dismissal was inadequate, weakening MBCC's argument that

there was just cause for dismissal. The element of notice required

to establish "just cause" for termination is an entirely separate

standard from the requirement of pre-termination notice under the

due process clause.         The arbitrator was not presented with the

question,     and   did    not   decide,     whether    Jackson   received    the

requisite notice under the due process clause that he might face

termination for the charged conduct.




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               II. Equal Protection "Class of One"

               An equal protection "class of one" claim "is cognizable

when - and only when - a 'plaintiff alleges that she has been

intentionally treated differently from others similarly situated

and    that    there     is      no   rational    basis     for    the    difference   in

treatment.'         At     the    summary   judgment      stage,     of    course,   this

allegation must be backed by competent evidence." Cordi-Allen v.

Conlon, 

, 250 (1st Cir. 2007) (quoting Village of

Willowbrook v. Olech, 

, 564 (2000)(per curiam)). In an

attempt       to   carry      that    burden,     Jackson    has    identified       three

incidents of complaints against MBCC professors that allegedly were

not treated in the same manner as the student complaint against

him.    Viewing the evidence in the light most favorable to Jackson,

the record does not support a finding that there was the requisite

degree of similarity between Jackson's circumstances and those of

the other MBCC instructors to whom he seeks to compare himself.

               Appellant also appeals from the district court's denial

of 1) his motion for default judgment and 2) his motion for

disqualification of defendants' counsel, the Massachusetts Attorney

General's Office.          Neither claim has merit.

               In their motion to allow a late filing of their answer,

nunc   pro     tunc,     defendants      claimed     that    there       was   "excusable

neglect" under Rule 6(b) because "due to the absence of a pertinent

entry in the office's case management system, undersigned counsel


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missed the deadline to file an answer and filed it upon discovering

the error."     "The district court is afforded great leeway in

granting or refusing enlargements . . . and its decisions are

reviewable only for abuse of that discretion." Maldonado-Denis v.

Castillo-Rodriguez, 

, 583-84 (1st Cir. 1994).               "The

Supreme Court has held that the term 'excusable neglect' should be

interpreted flexibly. See Pioneer Inv. Servs. Co. v. Brunswick

Assocs. Ltd. P'ship, 

, 389 (1993)." Benitez-Garcia v.

Gonzalez-Vega, 

, 6 n.8 (1st Cir. 2006).          And this court

has said that "'[a] default judgment is itself a drastic sanction

that should be employed only in an extreme situation.'" Coyante v.

P.R. Ports Auth., 

, 23 (1st Cir. 1997).        For the reasons

stated in defendants' motion to allow a late filing and opposition

to the motion for default judgment, the district court did not

abuse its discretion in determining that this was not such a

situation.

           Appellant's    claim   that   the   district   court    erred   in

denying   his   motion   to   disqualify   the   Massachusetts     Attorney

General's Office from representing the defendants is              frivolous.

In his opposition to appellees' motion for summary disposition,

Jackson accepts that the Attorney General's Office has authority to

represent the defendants.       He maintains that "the issue here is

whether the statutory procedures were followed."           The procedures

which Jackson claims were violated are contained in M.G.L. ch. 12


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§3E, which applies to actions against "an officer or employee of

any agency within the executive office of health and human services

or the department of education." 

  As the appellees have

pointed out, and appellant has not disputed, the MBCC is not an

agency within either of the named departments.      Therefore, the

statutory procedure that Jackson claims was not followed does not

apply to the Attorney General's representation of these defendants.

          Appellees' motion for summary disposition is granted and

the district court's judgment granting their motion for summary

judgment is affirmed. See 1st Cir. R. 27.0(c).




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