RICHARD v. REGIONAL SCHOOL UNIT 57
ORDER By JUDGE JOHN A. WOODCOCK, JR. (ccs)
UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
REGIONAL SCHOOL UNIT 57,
Finding that a teacher at a school district made out a prima facie case of
retaliation against the school district for her advocacy on behalf of disabled students,
that the district sustained its burden of production to demonstrate a legitimate,
nondiscriminatory reason for its adverse actions, and that the teacher proved that
the district’s proffered reason was pretextual, the Court rules in favor of the district
in this retaliation claim because it concludes that the teacher failed to demonstrate
that the true reason for the district’s adverse actions was related to her advocacy.
On May 27, 2016, Charlene Richard, a teacher at Regional School District Unit
57 (RSU 57), filed suit against RSU 57 claiming that RSU 57 retaliated against her
in violation of Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. §§
12101, et seq., section 504 of the Rehabilitation Act (Rehabilitation Act), 29 U.S.C. §
79, section 4633 of the Maine Human Rights Act (MHRA), 5 M.R.S. § 4633, and that
it violated the Maine Whistleblower’s Protection Act (MWPA). 26 M.R.S. § 833(1)(A).
Compl. (ECF No. 1). RSU 57 answered the Complaint on August 1, 2016, denying its
essential allegations and raising nine affirmative defenses. Answer of Def. Regional
Sch. Unit 57 (ECF No. 5). The original discovery period ended on December 20, 2016,
Scheduling Order (ECF No. 7); it was extended once by agreement of the parties to
January 20, 2017. Pl.’s Unopposed Mot. to Extend Disc. Deadline (ECF No. 10); Order
(ECF No. 13). The Court held a final pretrial conference on April 10, 2017. Report of
Final Pretrial Conf. and Order (ECF No. 26).
The Court held a five-day bench trial from May 22, 2017 through May 26, 2017.
Min. Entries (ECF No. 33-38). Ms. Richard and RSU 57 filed simultaneous post-trial
briefs and proposed findings of fact on June 9, 2017. Pl.’s Post-Tr. Br. (ECF No. 45);
Post Tr. Br. of Def. Regional Sch. Unit 57 (ECF No. 43); Def.’s Proposed Findings of
Fact and Conclusions of Law (ECF No. 44) (DPFOF). The parties simultaneously
filed responsive briefs on June 16, 2017. Pl.’s Post-Tr. Reply Br. (ECF No. 48); Post
Tr. Reply Br. of Def. Regional Sch. Unit 57 (ECF No. 47) (RSU 57 Post Tr. Reply).
SUMMARY OF LEGAL STANDARDS
Ms. Richard has brought claims under four different statutes; however, for
each statute, the courts typically employ the same burden-shifting analysis set out
by the United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973). Delgado Echevarria v. AstraZeneca Pharm. LP, 856 F.3d 119, 133-34 (1st
Cir. 2017); Kelley v. Corr. Med. Servs., No. 11-2246, 2013 U.S. App. LEXIS 2588, at
*16 (1st Cir. Feb. 6, 2013) (“A retaliation claim under the ADA is analyzed under the
familiar burden-shifting framework drawn from cases arising under Title VII”);
Pippin v. Blvd. Motel Corp., 835 F.3d 180, 183 (1st Cir. 2016) (quoting Walsh v. Town
of Millinocket, 2011 ME 99, 28 A.3d 60, 616)) (MWPA).1
There is some question as to whether the McDonnell Douglas burden-shifting
analysis is applicable at trial as opposed to summary judgment.
Shinseki, 689 F.3d 66, 71 (1st Cir. 2012) (At trial, “the McDonnell Douglas
framework, with its intricate web of presumptions and burdens, becomes an
anachronism. The jury, unaided by any presumptions, must simply answer the
question of whether the employee has carried the ultimate burden of proving
retaliation”) (internal citations omitted); Brady v. Cumberland Cnty., 2015 ME 143,
126 A.3d 1145 (“Because this case reaches us on summary judgment, it does not
present us with occasion to consider whether the McDonnell Douglas burden-shifting
structure should still be treated as a useful analytic device at trial”). Even so, as the
case has been tried before the Court and as the parties analyzed the case under the
McDonnell Douglas burden-shifting framework, the Court applied that analysis to
Under the McDonnell Douglas analysis, Ms. Richard bears the initial burden
of establishing a prima facie case of retaliation. To do so, she must prove that “(1)
she engaged in protected conduct; (2) she suffered an adverse employment action; and
(3) there was a causal connection between the protected conduct and the adverse
action.” D.B. v. Esposito, 675 F.3d 26, 41 (1st Cir. 2012). If Ms. Richard makes out a
In Brady v. Cumberland County, 2015 ME 143, 126 A.3d 1145, the Maine Supreme Judicial
Court ruled that the McDonnell Douglas burden-shifting analysis is not applicable to motions for
summary judgment under the MWPA. Id. ¶ 39 (“[W]e hold that at the summary judgment stage in
WPA retaliation cases, the parties are held to the same standard as in all other cases”).
prima facie case, the burden shifts to RSU 57 to articulate a legitimate,
nondiscriminatory reason for doing what it did. Delgado Echevarria, 856 F.3d at 134.
If RSU 57 meets its burden of production, the burden shifts back to Ms. Richard “to
show that the [articulated] reason was mere pretext.” Id. (quoting Collazo-Rosado v.
Univ. of P.R., 765 F.3d 86, 92 (1st Cir. 2014) (insertion in original)). Ms. Richard
bears “the ultimate burden to create a plausible inference that the employer had a
retaliatory motive.” Id. (quoting Carreras v. Sajo, Garcia & Partners, 596 F.3d 25,
36 (1st Cir. 2010)).2
THE HEART OF THE CASE: THE DECEMBER 8, 2014 MEETING
The heart of this case concerns a December 8, 2014 meeting among Ms.
Richard, RSU 57 Superintendent John Davis, Waterboro Elementary School (WES)
Principal Christine Bertinet, Assistant Principal Melissa Roberts, and Clinton Nash,
the local president of the Maine Educational Association, the teachers’ union. During
that year, Ms. Richard had been teaching a kindergarten class at WES and on Friday,
December 5, 2014, Superintendent Davis called the meeting to discuss “concerns
about [Ms. Richard’s] classroom and the conduct of the 5 year olds in the room.” Trial
Ex. 36 at 1.
Although there are different perspectives about the meeting, the consensus
was that Superintendent Davis became extremely angry with and accusatory of Ms.
In Palmquist, the First Circuit concluded that in a mixed motive case, a plaintiff proceeding
with a Rehabilitation Act retaliation claim must prove that the retaliation was the “but-for cause” of
the adverse employment case. 689 F.3d at 68. Here, the Court concludes that Ms. Richard has not
proven that RSU 57 retaliated against her because of her advocacy for the disabled students. Having
failed to prove that RSU 57 was motivated at all by unlawful retaliation, she also failed to prove the
higher “but for” standard in a mixed motive case under Palmquist.
Richard. In Ms. Richard’s words, Superintendent Davis was “serious, scary and
angry.” Mr. Nash described the meeting as “tense” and “fraught.” He said that he
became nervous at the meeting, even though he was not the subject of Superintendent
Davis’ attention. After the meeting, Ms. Richard testified that Principal Bertinet
apologized for the way the meeting had gone, saying that she had never seen
Superintendent Davis act that way. Ms. Richard said that Vice-Principal Roberts
facetiously told Ms. Richard: “I almost peed my pants.”
Specifically, Ms. Richard recalled that Superintendent Davis called her
“pathetic”, suggested that she had breached student confidentiality, told her that
parents had been complaining about her for years, and that she, not the boys, was
the problem. Ms. Richard asked Superintendent Davis to identify the parents who
had complained about her, and Superintendent Davis did not respond. Ms. Richard
said Superintendent Davis ended the meeting by telling her to “get back to class and
The events that led to Ms. Richard’s lawsuit flowed directly from the December
8, 2014 meeting. Following Superintendent Davis’ berating of Ms. Richard, the RSU
57 administration focused intensely on Ms. Richard’s performance as a teacher,
ultimately transferring her from teaching kindergarten at WES to teaching first
grade at Shapleigh Elementary School (SES) under an extremely constraining and
strictly-enforced Corrective Action Plan.
Ms. Richard buckled under intense
administrative pressure, lost time, required counseling, and filed this lawsuit.
The nub of the question before the Court is what made Superintendent Davis
so very irate with Ms. Richard at the December 8, 2014 meeting. Ms. Richard claims
that it was the fact that she advocated for two students in her classroom, T.K. and
L.P., who had suspected disabilities, as well as for other students in her classroom.
RSU 57 contends that Superintendent Davis became justifiably irritated with Ms.
Richard because she not only failed to appropriately manage her classroom, including
these two students, but also attempted to shift the blame for her own teaching
inadequacies to the administration for failing to supply adequate personnel for the
classroom and that she blamed the boys themselves.
In this opinion, the Court sets out in detail its findings of fact that illuminate
this critical issue. Following the December 8, 2014 meeting, the Court finds that Ms.
Richard was a marked teacher. Taking the strong cue from Superintendent Davis,
WES administration, specifically Principal Bertinet and Vice Principal Roberts,
began micromanaging Ms. Richard’s classroom, criticizing her asserted failures, and
building a case for administrative sanction by reprimands.
Ms. Richard buckled under the intense pressure from WES administration and
by early April, 2014, Ms. Richard lost considerable weight, vomited blood, and was
required to take a leave of absence from teaching. The stress from the administration
was so severe that in April 2015, Ms. Richard’s physician, Dr. Christy Pulsifer,
thought Ms. Richard was suffering from severe depression, and Ms. Richard was
taken out of work on a medical basis at that time. In Dr. Pulsifer’s words, Ms. Richard
was “pretty much falling apart.”
In response to Ms. Richard’s difficulties, Superintendent Davis wrote her a
letter dated April 15, 2015, informing her that when she returned to work, she would
be reassigned to a different school, the Lyman School, and she would be working “in
the kindergarten classroom supporting the current teacher.” Id. 83. Ms. Richard was
devastated by this letter. She thought she was being demoted to an education
technician and reassigned as a punishment.
In late April, 2015, Dr. Pulsifer
diagnosed post-traumatic stress disorder caused by a stressful workplace.
Ms. Richard was able to return to work on January 4, 2016, and Ms. Richard
agreed to teach first grade at Shapleigh Elementary School. Since her return to work,
she has operated under a Personal Improvement Plan (PIP). Id. 112. The PIP is very
detailed, running seven pages, and covers all aspects of her classroom performance.
Id. Ms. Richard estimated that it takes twenty hours per week just to comply with
the directives of the PIP.
FINDINGS OF FACT
Charlene Richard: 2005 through June 2014
From the outset of her career in 2005 through June 2014, Ms. Richard was an
exemplary, highly professional kindergarten teacher with uniformly excellent
Ms. Richard holds a bachelor’s degree from the University of New
Hampshire and received a master’s degree in education in 2005 from the University
of New England. Ms. Richard was employed at a private kindergarten in 2002-2003,
and she student-taught at WES in 2004. In 2005, RSU 57 hired her to teach as a
long-term substitute, and in July 2006, as a full-time teacher.
During her two-year probationary period, Ms. Richard received excellent
Notably, on December 12, 2007, Richard Knox, the
evaluator, praised her handling of an unruly student:
When one of the students attempted to stir up others by cutting in line,
bossing others, and throwing a carpet square, your measured, but firm
response was exactly what the situation called for. Well done.
Id. 1 at 9. On April 15, 2008, Mr. Knox wrote that “[c]lassroom management and
embedding routines are strengths of Charlene’s practice.” Id. 2. He concluded:
Based on the continued superior classroom practice that Mrs. Richard
demonstrates, I strongly recommend that she be placed on continuing
contract for MSAD#57.
Id. RSU 57 awarded Ms. Richard a continuing contract beginning in the 2008-09
From 2006, Ms. Richard worked at WES until January 2016 when RSU 57
transferred her to the SES. Except for the year 2010, when she taught third grade,
Ms. Richard was a kindergarten teacher throughout her time at WES. At SES, RSU
57 assigned her to teach first grade.
Before 2015, Ms. Richard had never been reprimanded by RSU 57 and she
never received a complaint from parents, the school, or her colleagues.
contrary, Ms. Richard received uniformly excellent assessments.
example, Christine Bertinet, then assistant principal at WES, issued three reports of
her classroom observations of Ms. Richard from December 19, 2013 through June 18,
2014. Id. 1, 9, 10. On December 19, 2013, Ms. Bertinet praised Ms. Richard, stating:
It is always a pleasure to spend time in your room. Your classroom is so
well organized and arranged in such a way that maximizes both
collaborative and independent learning opportunities.
Id. 9 at 1. She further wrote:
I love the presence of all four lesson components: direct, guided,
collaborative, independent. This was an excellent lesson with high
levels of engagement.
Id. at 2.
On February 26, 2014, Ms. Bertinet wrote:
Your lesson plans are very thorough, well organized, and
interdisciplinary in design. I would like to use this plan as a model with
Id. 12 at 1.
On June 18, 2014, Ms. Bertinet stated:
The student responses to questions did NOT save and I apologize that
you’re unable to view their wonderful words. It was a pleasure working
with you this year.
Id. 3 at 1. Ms. Bertinet’s June 18, 2014 evaluation was uniformly positive, including
her assessment of Ms. Richard’s class control. Id. at 1-10.
RSU 57 and Special Education: An Overview
RSU 57 is a regional school district that serves the towns of Alfred, Limerick,
Lyman, Newfield, Shapleigh and Waterboro, Maine. RSU operates five elementary
schools, one middle school, and a high school with approximately 3,000 total students.
WES is the largest elementary school in RSU 57. RSU 57 has a Behavior Program
with a mission to provide special education services to elementary school students
with disabilities that manifest through behavior problems. Beginning 2014-15, RSU
57 transferred the Behavior Program to WES and staffed it with a newly hired special
education teacher, Nicole Winship, a behavior specialist.
Three general categories of students with special education requirements
arrive at kindergarten: (1) those students previously identified as qualified for special
education, (2) those students who are suspected as qualified for special education
through testing, and (3) those students who are neither previously identified nor
suspected as qualifying, but who are identified through the year, usually by teacher
observation. Some students with special needs start kindergarten already identified
as eligible to receive special education. Child Development Services has typically
identified these students during preschool and the students start kindergarten with
an Individualized Education Program [IEP]. The contents of the IEP define the
components of the students’ programming as they enter public school. One of the
specialized services often given to students with disabilities is an Educational
Technician, a paraprofessional certified by the Maine Department of Education to
work with students with disabilities.
Providing educational technicians to a child
with a disability increases RSU 57’s cost of educating the child. In addition, the IEP
sometimes requires that RSU 57 provide outside services or even out-of-District
placement of special needs children, either of which results in additional costs to RSU
57. Thus, students identified with disabilities can become significant expenses. Tr.
of Proceedings 5:13-15 (ECF No. 46) (Davis Tr.) (“Q. And kids who are identified with
disabilities can become significant expenses; can’t they? A. They can”). If RSU 57 had
not allocated enough money for special needs students, RSU 57 would have to
reallocate money within its budget and occasionally faced a financial crunch. Id. 6:923.
A second category of students is those who arrive at kindergarten without an
IEP, but are suspected of having a qualifying disability due to “red flags” either
through pre-admission testing or teacher observation. Child Protective Services does
not identify all special education students before kindergarten and their qualifying
disability may become apparent only after they enter school. In June of the year the
student is to enter kindergarten, RSU 57 performs a series of tests, called the
Developmental Indicators for the Assessment of Learning (DIAL), which evaluates
the child in a variety of domains, including fine and gross motor skills, speechlanguage skills, vision, hearing, and pre-academic skills. The DIAL results could
generate “red flags” for the incoming student. In addition, the teacher may observe
signs that suggest a particular student might qualify for special education services.
Finally, there is a group of students who have not been identified by Child
Protective Services and have not been assessed by DIAL, but the teacher, through
observations, suggests might qualify for special education services.
(“[T]eachers were instrumental in identifying those [special needs students] during
the school year”).
RSU 57 Board Policy “seeks to ensure that all children within its jurisdiction
are identified, located and evaluated who are school-age 5 through the school year
they turn 20 and who are in need of special education and supportive assistance.”
Trial Ex. 113 at 1. RSU 57 Board Policy further provides that “[i]t shall be the policy
of RSU #57 to refer all school-age students suspected of having a disability that
requires special education to the IEP Team for an evaluation in all suspected areas
of disability. Referrals of students to the IEP Team may be made at any time by
parents, professional school staff, and/or by other persons knowledgeable about the
child’s educational needs.” Id. 115 at 1.
Consistent with RSU 57 Board Policy, it is RSU 57’s philosophy to refer
students for evaluation as soon as that need is identified. In fact, RSU 57 referred
more than 120 students for special education services during the 2012-13 school year,
over ninety students during 2013-14, and about eighty during 2014-15. During the
period from 2011 through 2016, the largest percentage of referrals occurred during
the kindergarten year when students are five and six years old.
While requiring that students suspected of needing special education services
be referred for evaluation, RSU 57 encourages use of the “Response to Intervention”
(RTI) process before referral where possible.
The RTI process applies a tiered
approach to addressing the needs of students who are not meeting grade level
academic or behavioral standards by providing targeted support to the student in the
least restrictive environment. Id. 20 at 7-8. Tier One Support is delivered and
monitored by the classroom teacher and, under RSU 57 policy is supposed to last
between four and six weeks; Tier Two Support is delivered by the classroom teacher,
support staff, specialists and/or guidance and generally lasts eight to ten weeks; Tier
Three Support is delivered by the classroom teacher, specialists, therapists, guidance,
social workers, and/or support staff, and generally lasts twelve to sixteen weeks; and
Tier Four Support is special education services usually in the form of an IEP. Id.
The RTI process seeks to avoid labeling the student as disabled because the
label is difficult for parents and sometimes disadvantageous for the student.
Therefore, if the interventions at any Tier are successful, the student may be removed
from the RTI process. In addition, if a set of interventions at a specific Tier is not
successful, the RTI team will try additional and different supports at the same Tier
before moving to the next Tier. The time frames for each Tier are not rigid. Although
under RSU 57 policy, a student does remain in Tier One longer than four to six weeks,
Tiers Two and Three may take somewhat longer than the listed time periods if the
student is making progress or if different supports are being implemented. Also, the
RTI process may be visualized as a pyramid with Tier One at the broad bottom and
Tier Three (before referral to Tier Four) at the narrow top. Id. at 7. As the student
proceeds from Tier to Tier, the number of students at each Tier is reduced and the
intensity of the intervention is increased. Id.
During this time, the RTI process at WES was divided into two parts.
Academic issues were addressed by the RTI Team and behavioral issues were
addressed by the Student Assessment Team (SAT). The SAT Team at WES consisted
of Nicole Winship, the Behavioral Specialist, Vice Principal Roberts, and other WES
Although the RTI process is encouraged as a first step, students may bypass
the process and go straight to a special education referral. Under Maine regulations,
parents have the legal right to refer their child directly to an IEP Team for immediate
eligibility evaluation and determination without using the RTI pre-referral process.
05-071 C.M.R. ch. 101, § IV.2.E(3) (“A parent may refer at any time”); Davis Tr. 3-6.
RSU 57 encouraged teachers who thought a student might qualify for special
education services to use the RTI process.3
Special Education Services and Charlene Richard
Ms. Richard usually had about two special education students in her
kindergarten classroom. She and one other teacher were the ones commonly assigned
the special education students. Once she was assigned a special education student,
Ms. Richard reviewed their IEPs and contacted the student’s parents. Usually,
special education students required accommodations. For example, instead of being
placed at a table of four students, they might be assigned a table of no more than two
students. Ms. Richard’s duty as a kindergarten teacher was to familiarize herself
with the student’s IEP and to make certain that the terms of the IEP were complied
Those kindergarten students not previously identified as special education
eligible pose a unique timing issue. Children come to kindergarten at different levels
of development and it takes all children time to settle into the routine of a classroom.
One lesson from this case is how regulated and bureaucratized public school teaching has
become. For example, Susan Prince, the Special Education Director for RSU 57, testified that there is
a difference between the IEP process and Section 504 students. The IEP process requires the
development of specialized direct instruction (SDI), but Section 504 addresses those students who are
disabled and require accommodation, but who are determined not to need SDI. RSU 57 also slices a
distinction between academic and behavioral disabilities, treating the two differently.
The regulation of teaching is compounded by periodic changes in teaching philosophy. There
are different models of teacher evaluation within the education field. The Charlotte Danielson model,
for example, differs from the Robert Marzano model, and it appears that teachers are sometimes
evaluated in part based on the philosophical preferences of the assessor.
No doubt regulation and changes in pedagogical philosophy are well intentioned. For the
outsider, however, understanding the bureaucratic and theoretical apparatus surrounding public
school education is a challenge.
Also, a kindergarten student may exhibit adverse behaviors that are unrelated to a
disability and may be caused by poor role models at home, other environmental
struggles, boredom, or attention seeking. Like all kindergarten teachers, Ms. Richard
did not want a child mislabeled due to the child’s initial adjustment difficulty. In
short, simply because a kindergarten student is misbehaving does not mean that he
or she is disabled.
Therefore, a teacher referral to the RTI process usually does not occur in the
first few weeks of school. Typically, a kindergarten teacher would not make a referral
until approximately mid-October. Once a RTI referral is made and the child is slotted
into Tier One, the classroom teacher is primarily responsible for carrying out this
phase. For example, Tier One often involves smaller group instruction. Even though
Tier One is supposed to last four to six weeks and the total amount of time for Tiers
One through Three is supposed to be about eight months, in practice, kindergarten
students rarely go beyond Tier One, and at first grade, they start Tier One over again.
Charlene Richard, an Autistic Student, and K.M.
During the school year 2012-13, RSU 57 assigned a child to Ms. Richard’s class.
Ms. Richard raised concerns about this student and later the student was diagnosed
with autism. The student was then removed from her class and assigned to a special
program geared to autistic children.
In mid-March, 2014, RSU 57 assigned K.M., a new male student, to Ms.
Richard’s kindergarten classroom.
K.M. transferred from the Reiche School in
Portland, Maine. RSU 57 informed Ms. Richard of K.M.’s placement by email, stating
“Congratulations, new student!”, but it did not forward his file to her. When informed
about K.M.’s imminent arrival, Ms. Richard sought to review K.M.’s file and to
familiarize herself with his needs; however, RSU 57 had received none of K.M.’s
paperwork, making background preparation for his arrival impossible. Ms. Richard
attempted to contact K.M.’s parents, but their phone number did not work. Upon
arrival, K.M. engaged in troubling behaviors, including making no eye contact,
making shooting motions with his fingers at other students, yelling and jumping,
pounding on the table, directing comments like “Kill! Kill! Die!” at other students,
and drawing pictures of people being decapitated and covered in blood.
Ms. Richard took it upon herself to contact his Reiche School teacher, Kevin
Brewster. Mr. Brewster told Ms. Richard that when he was a student at the Reiche
School, K.M. displayed odd behaviors. There were social concerns, such as obsessions
with female peers, yelling outbursts with no apparent trigger, and academic issues.
Mr. Brewster told Ms. Richard that K.M. was in RTI Tier Two and was being fasttracked to Tier Three. Trial Ex. 13 at 1. On March 18, 2014, Ms. Richard emailed
school officials about K.M. and what she had discovered by talking with Mr. Brewster.
Id. Ms. Richard suggested a meeting to discuss the next steps and “seeing how we
can help him.” Id. at 1. Ms. Richard repeatedly asked the WES administrators to
provide her with guidance and support for dealing with and responding to K.M.’s
behaviors. She was not asking to have him removed from her classroom; she was
asking that he receive services and accommodations that would allow him to succeed
in her classroom. Despite Ms. Richard's requests, WES administration only allowed
Ms. Richard to “buzz” the principal’s office whenever K.M. became violent.
On March 19, 2014, Ms. Bertinet visited Ms. Richard’s classroom and compiled
a set of observations about K.M. and Ms. Richard. Id. 15 at 1-2. Ms. Bertinet’s
observations do not contain any criticism of Mr. Richard; to the contrary, she praises
Ms. Richard’s “use of questioning”, the “energy” in the room, which she characterizes
as “wonderful,” and her use of “proximity” with K.M. Id. Ms. Bertinet describes some
of the unusual aspects of K.M.’s responses, including being in “an imaginary place,”
responding to questions with a “high pitched voice,” and being unable to respond to
After about three weeks in Ms. Richard’s class, RSU 57 transferred K.M. to
This was not done at Ms. Richard’s request.
explained that the transfer was done because K.M. was not having a positive
experience in Ms. Richard’s classroom and it was not the right placement. The new
classroom had two educational technicians. After the transfer, K.M. did better,
although he continued to engage in some difficult behaviors. Also, K.M. was started
in the RTI process. RSU 57 ended up referring K.M. for evaluation and he was
identified as a special needs student by the start of the first grade.
During Ms. Richard’s involvement with K.M., Mr. Peterson, the then WES
principal, apprised Superintendent Davis about a challenged child in Ms. Richard’s
classroom. Davis Tr. 6:24-7:15. Based in part on Ms. Richard’s involvement with
K.M., Superintendent Davis developed concerns about Ms. Richard in the spring of
2014. In his view, Ms. Richard seemed to be having annual problems with one or
more of her students.
Superintendent Davis, however, did not have any direct
knowledge about Ms. Richard’s teaching ability and instead relied upon Mr. Peterson,
the WES principal, to advise him.
Administrative Changes: 2013-14 to 2014-15
During the 2013-14 school year, Mark Peterson was the principal for WES.
Upon his retirement at the end of the 2014 school year, RSU 57 named Christine
Bertinet as the new principal and Melissa Roberts as the new vice-principal. Ms.
Bertinet joined WES as the assistant principal in 2012. Based on her prior experience
with them, when RSU 57 named Ms. Bertinet and Ms. Roberts as principal and viceprincipal, Ms. Richard was encouraged.
Events Before and at the Beginning of the 2014-15 School Year
When Ms. Richard received her student roster for the fall of 2014, she had been
assigned eighteen students. This number was increased in late June, 2014 to twentytwo. Of the twenty-two students, Ms. Richard initially did not know whether any
students had an IEP. That summer, she learned that three students had been
identified as requiring special education services: K.N., G.T. and L.S.
On August 1, 2014, Ms. Richard wrote to Jamie Paige, a fellow kindergarten
teacher who had attended G.T.’s transitional IEP Team meeting, for information
concerning G.T. Trial Ex. 107 at 2. Ms. Paige responded the same day. Id. at 1. She
told Ms. Richard that G.T. “still can get angry and aggressive.” Id. She wrote that
he will “destroy the work of others, hit/kick peers, and yell at peers and teachers. He
will tell his teachers to shut up.” Id. She went on to describe other behavioral and
academic issues. Id. She had some suggestions for dealing with G.T. Id. Ms. Paige
said, however, that neither she nor G.T.’s preschool teacher thought he needed a
special education technician, but “there needs to be a plan in place to help him on the
occasions he is aggressive and needs a break.” Id.
Ms. Richard wrote to Ms. Bertinet on August 6, 2014:
I want to be sure that I am ready for this child. He is coming from a
small student to teacher ratio. It sounds like, from the notes below and
the mom, that he needs a lot of support. He demonstrates aggressive
behaviors and verbal outburst. I really am not comfortable with his
placement in my class without G.T. receiving in-class support. If I had
5 students it might be different, but I have twenty something. There is
a lot of stimuli, and currently meeting all the needs he has in that type
of framework, seem [sic] like a constant task for at least his acclimation
The Missing IEPs
RSU 57 failed to provide Ms. Richard with copies of the IEPs for the three
special education students at the beginning of the school year, despite Ms. Richard’s
numerous requests. None of the student’s file folders in the WES office contained
these critical documents. Ms. Richard made over a dozen requests for assistance in
obtaining the missing IEPs.
On September 6, 2014, Ms. Richard emailed Ms. Bertinet requesting that she
be provided with the IEPs for the three special education students. Id. 16 at 1 (“I still
need the IEP’s”). Ms. Bertinet responded that she had told all case managers to
distribute the IEPs and that she would follow up with “Carolyn.” Id. Without the
IEPs for the special needs students, Ms. Richard was left “in the dark.” Ms. Richard
received the first of the three IEPs in early October 2014 and she wrote to Ms.
Bertinet: “I find it pitiful that it has taken this long, for me his K teacher, to receive
the document. I have been actively pursuing it, since August. I, until today, had no
information on his goals or necessary class accommodations.” Id. 26 at 1. Ms. Richard
did not receive the IEPs for the other two special education students until later in
Rutharian Gregoire: Educational Technician II
RSU 57 provided Ms. Richard with in-class support in the form of an
Educational Technician II named Rutharian Gregoire, who assisted with the three
identified special education students.
However, Ms. Richard noticed that Ms.
Gregoire was being pulled out of her classroom and no one would come in to replace
Ms. Gregoire. Ms. Richard received no advance notice of Ms. Gregoire’s absence from
the classroom and no substitute. Ms. Richard was left to try and find coverage on her
own, if she could; otherwise, the students with disabilities were left without the
educational technician services their IEPs specified.
T.K. and L.P.
At some point, Ms. Richard learned that in addition to the three students
identified as special education eligible, the class contained two other students who
were suspected of needing special education services: T.K. and L.P. At the Open
House, T.K.’s mother told Ms. Richard that T.K. would be receiving special education
services, that he was daydreaming, and that he had social issues. T.K.’s mother said
that she thought he needed both physical and occupational therapy. Ms. Richard
noticed that T.K. engaged in disruptive and violent behaviors that hurt classmates
and that he showed no remorse. T.K. often engaged in negative behaviors when he
thought no one was watching him and he was unable to function successfully in class
without an adult sitting right next to him.
From the start of the school year, Ms. Richard noticed that L.P.—although not
identified with an eligible disability—exhibited odd behavior and mannerisms,
engaged only in parallel play, made no eye contact, and at times would be
dysregulated and have meltdowns, including swearing and engaging in physical
violence. L.P. also made mean comments to his classmates and at one point he threw
an iPad at the window.
Over time, Ms. Richard suspected that both T.K. and L.P. had underlying
disabilities that were contributing to their poor classroom behaviors. In September,
2014, Ms. Richard reported L.P.’s behavior issues and his apparent need for
additional support to WES administrators. By early November, 2014, Ms. Richard
had done the same for T.K. Ms. Richard did not, however, request that either T.K. or
L.P. be removed from her classroom.
In response to Ms. Richard’s continued requests for support for T.K. and L.P.,
the administrators sometimes checked in on the classroom, or responded to Ms.
Richard’s buzzing the principal’s office. Ms. Richard sought out and received advice
and some modeling from Melissa Roberts, who is a trainer in Responsive Classroom
The WES administrators also asked Ms. Winship, the behavior specialist, to
check with Ms. Richard. Ms. Winship is not a Board Certified Behavior Analyst; she
is a special education teacher. Ms. Winship had just begun her first public school
position after teaching preschool at Waban in Sanford, Maine.
conducted some brief observations in Ms. Richard’s classroom, but she did not become
directly involved in assessing T.K. or L.P.’s behavioral needs. She created a “behavior
plan” for L.P. and told Ms. Richard to keep track of L.P.’s behavior on the behavior
chart that Ms. Gregoire originally designed. See id. 41, 47, 124. When Ms. Richard
asked for help with T.K., Ms. Winship advised her to use the same behavior plan and
charts for T.K. without assessing T.K. Ms. Richard, with the assistance of Ms.
Gregoire, completed the behavior charts for both T.K. and L.P. and awarded stickers
and positive reinforcements as suggested by the plan. However, the behavior plan
was not successful in reducing or eliminating the negative behaviors that both of
these boys continued to exhibit. T.K. and L.P. continued to misbehave and hurt some
of their peers in Ms. Richard’s class. Two students in particular, B.D. and C.S., were
frequent targets of T.K. and L.P.’s negative behaviors.
Ms. Richard’s Early Relationship with Principal Bertinet and
Vice Principal Roberts
Ms. Richard was initially encouraged by RSU 57’s appointment of Christine
Bertinet and Melissa Roberts as principal and vice-principal of WES. For example,
in an email exchange on Saturday, September 20, 2014, Ms. Richard wrote to Ms.
I wanted to extend a serious thank you for being a hands on principal!
You have been really receptive to staff. This week I felt like I could
provide better personalized communication to families, b/c there was a
little more time on my plate. I like open relationships with families
when it isn’t coming out of my own family time. I think you know that
I am not an 8:30 to 3:30 type girl, but the additional time during the
school day has been most appreciated! ♥
Id. 22 at 1. Principal Bertinet responded on Sunday, September 21, 2014:
I REALLY appreciate this email more than you know.
Thank YOU for all you do.
During November, 2014, an issue arose about the scheduling of parent-teacher
Not realizing that the scheduling was controlled by the collective
bargaining agreement, Ms. Bertinet and Ms. Roberts scheduled the conferences
during Thanksgiving week.
Ms. Richard knew that this violated the collective
bargaining agreement and she informed both Ms. Bertinet and Ms. Roberts. Ms.
Richard thought that Ms. Bertinet and Ms. Roberts, being new at their
administrative jobs, had simply made a mistake. Id. 27 at 2-3. Both Ms. Bertinent
and Ms. Roberts told Ms. Richard that they had no idea of the violation. Ms. Roberts
apologized at a staff meeting and on November 5, 2014, both Ms. Bertinet and Ms.
Roberts clarified the issue in a joint email to WES staff. Id. at 1. Ms. Bertinet
apologized to Ms. Richard in an email also dated November 5, 2014. Id. at 2. In
response, Ms. Richard wrote to Ms. Bertinet, saying “You and Melissa rock!” Id. On
November 8, 2014, Ms. Bertinet thanked Ms. Richard for being “so open and so
positive.” Id. 28 at 1. Ms. Richard replied by thanking Ms. Bertinet for being so
“caring about your staff.” Id. 29 at 1. Ms. Bertinet responded, “Thanks, Charlene. I
appreciate your input and support. Yes, we all need to feel like we’re working toward
common goals and develop a culture of support and openness.” Id.
In early November, Ms. Richard requested paperwork to refer both T.K. and
L.P. to the Student Assistance Team, because she realized that both students
required more services than she could provide, given her overall responsibility to a
class of over twenty kindergarteners. Even so, as of mid-November, 2014, there was
no adversity between the WES administration and Ms. Richard, despite her
recommendations concerning T.K. and L.P. As of mid-November, 2014, Ms. Richard
described her relationship with Principal Bertinet and Vice Principal Roberts as
The “Break Room” Incident
After WES became the host elementary school for RSU 57’s “Behavior
Program” in 2014-15, it began a new feature, called the “break room” for behavioral
students. Located in a converted office along the same hallway as the kindergarten
classrooms, the break room was three doors down from Mr. Richard’s classroom and
two doors down from Jennifer Elsaessor’s classroom. Ms. Elsaessor was another
kindergarten teacher at WES.
The location of the break room meant that both Ms. Richard and Ms.
Elsaessor’s classes heard screaming and swearing from the break room and
occasionally, the teachers had to close or lock the doors to their classes to keep their
students from being scared by the noise. Specifically, students in the break room
were heard screaming, “Let me out”, and using “disgusting language.” On three
occasions, students who were in Ms. Richard’s classroom began crying because of
what they were hearing.
On November 19, 2014, Ms. Bertinet emailed Ms. Richard to alert her that she
had been informed that Ms. Richard had “escorted one of [her] students to the [break
room] and secluded him.” Id. 30 at 1. Ms. Bertinet wrote that there were “a couple
of things I need to address with you.” Id. She asked Ms. Richard whether she had
written a seclusion report or contacted the student’s parents. Id. She went on to
write that “Nichole Winship [the behavior specialist] must be involved in all decisions
regarding the use of this break space. This is something that has been mentioned
previously and needs to be followed.” Id.
Ms. Richard replied later that day, stating that she had “NEVER brought
anyone to the break room.” Id. at 2. Ms. Richard denied telling “anyone to take a
student there. I have a United States rug, in my room, that is used for any student
that feels a break is needed. :).” Id. Ms. Bertinet initially responded by thanking Ms.
Richard for clarifying and indicated that this is the way the incident had been
reported to her. Id. It turned out that Ms. Gregoire, the Education Technician II,
had brought L.P. to the break room at L.P.’s request just to show him the room.
Despite the fact that she had not brought L.P. to the break room, Principal
Bertinet, Vice Principal Roberts, and Ms. Winship demanded that Ms. Richard
complete a seclusion report.
On November 20, 2014, Ms. Richard emailed Ms.
Bertinet, Ms. Roberts, and Ms. Winship (with a copy to Mr. Nash) asking for
clarification about the use of the break room. Id. 31 at 1-2. She requested guidelines
for the use of the room, saying that she had never been informed about the
parameters for use of the space, and she thought she might have to use it in the
Ms. Richard reported that she had seen Ms. Winship holding the break room
door closed with a student inside the room and she had overheard Ms. Winship asking
a janitor to remove the inside handle of the door to the break room. Id. Ms. Richard
cited a portion of the Administrative Procedures Manual that prohibited securing the
door against the student or holding the door shut while the student was in the room.
Id. She reiterated that she had “never requested or directed any of my students be
placed in the time-out room.” Id. at 2. Ms. Richard raised questions about the
incident and wrote that she did not want to make guesses and assumptions on official
paperwork; she suggested that it would be better if the parties directly involved in
and overseeing the decision filled out the report. Id. Ms. Richard notified Mr. Nash
because she worried she was getting in trouble with administration for failing to
complete the report.
After Ms. Richard sent the November 20, 2014 email, she noticed that Ms.
Winship’s attitude toward her seemed to change. Previously, Ms. Winship had been
friendly, but after the email, Ms. Winship would not look at Ms. Richard.
Bertinet asked Ms. Richard why she had sent a copy of her November 20, 2014 email
to Mr. Nash, the union representative.
The Parent-Teacher Conferences and SAT Referrals
The parent-teacher conferences at WES took place just before the
Thanksgiving Day recess on November 14, 2014. At other conferences, Ms. Richard
learned more from other parents about the scope of T.K. and L.P.’s misbehaviors
against other students in her classroom. At least eight families informed her that
the behavior of these two boys, whom they knew by name, was harmful and
unacceptable. Due to growing issues with T.K.’s behavior, which Ms. Richard had
flagged, both WES administrators attended his conference.
Even though Ms. Richard could not directly refer either T.K. or L.P. for
evaluation by the IEP Team, she referred them to WES’s SAT. After school on
Tuesday, December 2, 2014, while waiting for an evening PTO meeting, Ms. Richard
completed an old version of the WES referral form to the SAT for both T.K. and L.P.
and she dated the referral forms the next day. Id. 34, 35.
T.K.’s Acting Out: C.S. and her Parents’ December 2, 2014 Email
On December 2, 2014, the parents of C.S., one of Ms. Richard’s students, wrote
an email to Ms. Richard with a copy to Principal Bertinet, placing them on notice that
C.S. complained to her parents that evening that T.K. had tried to pull down her
pants and underpants that morning during the morning meeting. Id. 33 at 1. C.S.
asked T.K. three times to stop. Id. When asked whether she had experienced
previous problems from T.K., C.S. reported that T.K. had tried to push her into a
teacher’s desk. Id. Also, the parents wrote, on Halloween, C.S. had come from school
with her hands red and swollen and when her parents had asked what had happened,
C.S. told them that while she was washing her hands, T.K. had turned on the hot
water. Id. The parents attached a photograph of C.S.’s hands that they had taken
on Halloween. Id. They asked that WES act to protect their daughter from T.K. and
asked to know what steps WES had taken regarding T.K.
forwarded C.S.’s parents’ email to Ms. Richard on December 2, 2014, noticing that it
appeared that C.S.’s parents had used an incorrect email for Ms. Richard. Id.
Ms. Richard was aware of the incident. As it turned out, Vice Principal Roberts
had been in Ms. Richard’s classroom when the incident took place. After the session,
C.S. approached Ms. Richard and told her about T.K.’s putting his hands down the
back of her pants and pulling down her pants and underpants while they sat in a
circle. Ms. Richard called Ms. Roberts over and they discussed the incident with C.S.
in the hallway. C.S. did not mention anything about T.K. playing with her belt loops;
her pants had an elastic waist and no belt loops.4
Ms. Richard explained the context for the hot water incident. There was a sink
in Ms. Richard’s classroom and the hot water produced scalding 140 degree water.
Ms. Richard had taped down the hot water handle with pink duct tape to prevent
students from using it and she made it clear to the students that the hot water tap
was off limits. Nevertheless, on October 31, 2014, T.K. turned on the hot water tap
Vice Principal Roberts had a different memory of this incident and C.S.’s complaint. Even
though Ms. Roberts was in the classroom when it happened, she admitted that she had not noticed it
during the lesson, because her back was to the classroom. Ms. Richard and Rutharian Gregoire were
also in the classroom at the time and did not see T.K.’s misconduct.
Ms. Roberts recalled C.S. being shy about reporting the incident but testified that C.S. had
only complained that T.K. had been flipping on her belt loop, pulling and tugging at it.
The Court accepts Ms. Richard’s recollection of the incident over Vice Principal Roberts’
memory. Ms. Richard’s recollection, namely that T.K. had tried to put his hands down C.S.’s pants
and had tried to pull down her pants and underpants, is consistent with what C.S.’ parents indicated
to Principal Bertinet and Ms. Richard that C.S. had told them the evening of the incident.
and had burned C.S.’s hands. Ms. Richard told Principal Bertinet that T.K. was
sneaky and that he had been hurting students in her classroom on a daily basis.
L.P. and B.D.
The morning of Wednesday, December 3, 2014, L.P. walked into the classroom.
Ms. Richard said, “Good morning,” but L.P. walked by and did not respond. He then
threw his glasses on the floor. At that point, L.P. picked up a chair and threw it at a
classmate, B.D., striking him on the head. B.D. had been bent down looking into his
cubby. B.D. was sent to the school nurse.
Ms. Richard spoke to Principal Bertinet about the incident, but L.P. was back
in her classroom in ten to fifteen minutes. Ms. Richard told Principal Bertinet that
L.P. needed services and Ms. Richard reminded her about the three IEPs and L.P.
plus T.K. being in her classroom. Principal Bertinet suggested that Ms. Gregoire
might be able to assist, but Ms. Richard reminded Ms. Bertinet that Ms. Gregoire had
her hands full with the three IEPs in the Richard classroom.
B.D.’s parents complained about B.D.’s safety in Ms. Richard’s classroom.
Later that day, B.D.’s mother met with Vice Principal Roberts about the situation.
Vice Principal Roberts told B.D.’s mother that WES was “collecting data” and was
“working on the situation.” B.D.’s mother was not satisfied with Vice Principal
B.D.’s Mother Complains to Superintendent Davis
On December 4, 2014, B.D.’s mother called Superintendent John Davis to
complain about the lack of safety in the classroom for her son. 5 B.D.’s mother was
herself educated and experienced as a teacher.
She held a master’s degree in
administration and was certified as a teacher in K through Eighth Grades. She had
worked at RSU 57, teaching Fourth Grade from 2006 through 2008, and was
currently a teacher at the Gray-New Gloucester middle school.
B.D.’s mother told Superintendent Davis that B.D. had been subjected to
physical abuse while at WES. She told him that he had come home reporting that he
had been hit and kicked. She had questioned her son about what he was doing to
bring on this abuse. She told Superintendent Davis that her son had been kicked in
the private parts, that a chair had been thrown at his head, that he had been punched
and stepped on, and that his hand had been held under hot water. She also said that
her son was being choked on the playground and could not breathe so he had hit
B.D.’s mother reported that she had discussed this matter with Vice Principal
Roberts, but that Ms. Roberts had told her that they were “collecting data on the other
child so they could figure out a placement.” B.D.’s mother told Superintendent Davis
that she told Vice Principal Roberts that her child was not “a punching bag.”
In its proposed findings, RSU 57 proposed that the Court find that B.D. himself had behavioral
issues: “Although their son, BD, had exhibited some challenging behaviors himself, see Trial Ex. 43
(struggling with listening, trying to wrestle with other students, threatening to punch a girl).” DPFOF
¶ 41. The Court has not included these facts in its recitation of the relevant evidence. B.D.’s issues,
such as they were, did not justify L.P. throwing a chair at his head and causing B.D. to have to go to
the school nurse. The Court is unclear why B.D.’s behavioral issues are relevant.
B.D.’s mother spoke in complimentary terms about Ms. Richard. She asked
Superintendent Davis what RSU 57 had done to evaluate the boys who had been
aggressive with her son, asking if RSU 57 had completed a risk analysis on them.
B.D.’s mother thought that Superintendent Davis was rude and disrespectful toward
her. B.D.’s mother pressed for a meeting with Superintendent Davis and one was
scheduled for the afternoon of Monday, December 8, 2014, to be attended by both of
The December 8, 2014 Meeting
On Friday, December 5, 2014, Superintendent Davis notified Ms. Richard that
he was convening a meeting. Id. 36. The notice read:
Folks, I have received word from a few parents that they have a concerns
[sic] about the classroom and the conduct of the 5 year olds in the room.
I will be at WES on Monday to meet with the you [sic] to discuss the
issues and what our staff is doing about these concerns. I sent a
calendar invite. We will meet at 11:45 in Ms. Bertinet’s office. Thank
Id. 36 at 1. Superintendent Davis sent the notice to Principal Bertinet, Vice Principal
Roberts, Ms. Richard, and Clinton Nash, the union representative. Id. Ms. Richard
responded on Saturday, December 6, 2014:
Thank you for taking the time to discuss what is occurring with my
learners. Christine and Melissa have been really supportive. We have
even met with the parents of both children, whom were just as
frustrated and not sure what step to take next. Normally with a little
behavior molding and a structured school day, my class is a wonderful
place to learn. I am hoping with your experience, you might have some
suggestions also. :)
Charlene Richard’s Recollection of the Meeting
Ms. Richard was both hopeful and scared about the meeting. She was worried
about the fact that Superintendent Davis had copied Clinton Nash, the local
president of the Maine Education Association.
The morning of the scheduled
meeting, Ms. Richard went to see Principal Bertinet. Ms. Richard sat down, became
emotional, and started to cry, saying that she was concerned about Mr. Nash being
there. Principal Bertinet consoled Ms. Richard, rubbing her back. Principal Bertinet
replied that she only knew what was in the notice and she reassured Ms. Richard
that “it will be fine.” Ms. Richard brought along to the meeting the behavior charts
for both T.K. and L.P., the behavior plan for L.P., and her SAT referrals for both
On December 8, 2014, Ms. Richard, accompanied by Clinton Nash, met for
about forty-five minutes with Superintendent Davis, Principal Bertinet, and
Assistant Principal Roberts. At the meeting, Superintendent Davis’ tone was serious,
scary and angry.
He began the meeting by accusing Ms. Richard of breaching
confidentiality with parents. He told Ms. Richard that if she had breached student
confidentiality, they would be having a very different conversation.
He told Ms. Richard that she was “pathetic” and that RSU 57 had wasted ten
years on her. Superintendent Davis declared that if Ms. Richard could not handle
twenty or something students, they would find her a job she could handle. He said
that parents had been complaining about her “for years.” Ms. Richard asked him who
had complained about her and Superintendent Davis did not answer her question.
Indeed, even though she had brought along the students’ charts and the SATs and
she tried to discuss the students, Superintendent Davis did not allow Ms. Richard to
speak in her own defense.
Superintendent Davis announced that Principal Bertinet and Vice Principal
Roberts both thought that Ms. Richard was targeting T.K. and L.P. He stated that
C.S. had never had her hands burned by T.K. and that instead C.S. had eczema,
which explained her hand redness. He also asserted that T.K. had never put his
hands down C.S.’s pants, that it “never happened.”
Superintendent Davis told Ms. Richard that “you are the problem, not the
boys.” He told her that he was sending her a memorandum, which would set forth
the administration’s expectations going forward. He informed her that Stacy Jette,
an educational technician, would be the “eyes and ears” of the administration, and
that they would be watching her to see if she was targeting these boys. He ended the
meeting by telling Ms. Richard, “Now get back to class and teach.”
Clinton Nash’s Recollection of the Meeting
Clinton Nash recalled the meeting as “tense and fraught.” He said that he
became nervous even though he was not the object of Superintendent Davis’ anger.
He remembered that Superintendent Davis started off the meeting by accusing Ms.
Richard of giving confidential information about one student to the parents of another
student. He said that Superintendent Davis questioned Ms. Richard’s ability to teach
non-cookie cutter kids.
Mr. Nash said that neither Principal Bertinet nor Vice
Principal Roberts contradicted Superintendent Davis’ accusations and neither spoke
on behalf of Ms. Richard. Mr. Nash recalled that Ms. Richard tried to present some
of the documents she had brought along and Superintendent Davis said that this was
not the time for documents.
Melissa Robert’s Recollection of the Meeting
Vice Principal Roberts acknowledged that she was nervous before the
December 8, 2014 meeting with Superintendent Davis because this was the first time
she had been called to a meeting with the Superintendent over a parental complaint.
At the meeting itself, she also admitted that she became nervous. She said that
Principal Bertinet started the meeting by describing the background, but that
Superintendent Davis interrupted Principal Bertinet.
Vice Principal Roberts
described Superintendent Davis as “clear, direct and stern.”
She did not recall
Superintendent Davis calling Ms. Richard pathetic or telling her that RSU 57 had
wasted ten years on her. She agreed that Superintendent Davis did not criticize
either Principal Bertinet or herself during the meeting.
John Davis’ Recollection of the Meeting
Superintendent Davis recalled that he had concerns about Ms. Richard’s
ability to manage her classroom that went back at least to her experience with K.M.
upon his transfer from the Reiche School. He remembered that Mr. Peterson, the
then WES Principal, had informed him that they had moved K.M. out of Ms. Richard’s
classroom. By the time of the December 8, 2014 meeting, Superintendent Davis was
“beginning to wonder” whether K.M.’s transfer to another classroom had been Ms.
Superintendent Davis agreed that his conversation with B.D.’s parents had
precipitated the December 8, 2014 meeting. He said that he first spoke to B.D.’s
parents on the telephone and later met with them. He said that he became concerned
that B.D.’s parents knew the names of the other students and other intimate details
about the other students. He thought Ms. Richard had been feeding information
about the other students to B.D.’s parents. He remembered that Ms. Richard denied
breaching confidentiality. Davis Tr. 18:23-19:6. But, he agreed that he did not accept
her denial and told her that if she had done so, he would open an investigation. Id.
Superintendent Davis explained that he copied Mr. Nash about the meeting
because Mr. Nash complained to him earlier about there being too many meetings
between administration and individual teachers without union representation.
Superintendent Davis recalled that Principal Bertinet began the meeting and
that he interrupted her early on. Superintendent Davis acknowledged that he began
the meeting by accusing Ms. Richard of breaching student confidentiality and that he
warned her that if he found out that she had done so, he would initiate an
investigation. Superintendent Davis agreed that he had been “sharp in tone.” Id.
18:11-13. Superintendent Davis admitted that B.D.’s parents had not complained
about Ms. Richard and in fact were positive about her. He did not recall whether he
told Ms. Richard that parents had been complaining about her for years, but he
acknowledged that he may have done so. He could recall no parental complaints
about Ms. Richard and could not remember any parent ever complaining that Ms.
Richard had not taught their children well.
Superintendent Davis admitted that he was frustrated because he thought the
students were being asked to bear the brunt of responsibility for problems in the
classroom. He stated that he thought they were blaming the children for what was
an adult responsibility and they were victim blaming. He emphasized that no one
was taking responsibility. He agreed that he was frustrated and angry, but he
asserted that he was frustrated and angry at everyone, including himself.
Superintendent Davis agreed that Ms. Richard attempted to present
documents at the December 8, 2014 meeting, but he had told her the meeting was not
the appropriate place to review the data. He explained that this was not “the purpose
of the meeting.” Id. 23:21-23. He denied telling Ms. Richard that RSU 57 had wasted
ten years on her, but he acknowledged that he questioned Ms. Richard’s classroom
Christine Bertinet’s Recollection of the Meeting
Christine Bertinet was caught off guard that B.D.’s parents had gone directly
to Superintendent Davis. She thought that Superintendent Davis scheduled the
December 8, 2014 meeting to explain what support RSU 57 was going to extend to
Ms. Richard. Ms. Bertinet remembered reassuring Ms. Richard on December 5, 2014
that Superintendent Davis bore her no ill will.
Ms. Bertinet began the meeting by letting the Superintendent know that they
had a plan. Ms. Bertinet recalled Superintendent Davis emphasizing the importance
of student confidentiality, but she did not remember that Superintendent Davis
accused Ms. Richard of breaching confidentiality.
Ms. Bertinet remembered
Superintendent Davis insinuating that a veteran educator should have been able to
handle the classroom more effectively than Ms. Richard had been able to do. In light
of Superintendent Davis’ tone, Ms. Bertinet realized that she had work to do in order
to convince Superintendent Davis that they were responding appropriately. Ms.
Bertinet remembered that Superintendent Davis mentioned the investment RSU 57
had made in her.
Ms. Bertinet conceded that at the meetings, she stated that she had concerns
about Ms. Richard’s classroom performance. She also agreed that the December 8,
2014 meeting was not collaborative. Ms. Bertinet agreed that Superintendent Davis
did not criticize either Vice Principal Roberts or herself during the December 8, 2014
meeting and did not request that any memoranda be placed in their personnel files.
At the end of the meeting, Superintendent Davis directed Ms. Bertinet to follow up
in writing so there would be no ambiguity.
The December 8, 2014 Bertinet Memorandum and Charlene
After the December 8, 2014 meeting, Ms. Bertinet gave Ms. Richard a folded
envelope and followed it up with an email. Trial Ex. 40. The contents of the folder
and the email were the same and stated in plain and bold print:
Recently, concerns have been brought to my attention around classroom
management and how it is impacting student safety; these concerns
stem in part from an inconsistent follow-through on
implementing the behavior plan that was developed by the
Behavior Coach, as well as strategies presented to you by
Assistant Principal. As the superintendent mentioned in our meeting
this morning, he, too, is becoming increasingly concerned about your
behavior management strategies. In order to address these concerns, I
am going to expect that you follow the expectations outlined below:
1. Behavior Plan Implementation: Adhere to the current behavior
plan being monitored by the Behavior Coach. Should you have any
questions, please consult with Mrs. Roberts or me.
2. Behavior Management Techniques Implementation: Mrs.
Roberts and the Behavior Coach will continue to model and coach
behavior management strategies, such as 1. student travel
strategies; 2. provide students with modeling and reinforcing of
expected behaviors; 3. reassure students of time frame check-ins; 4.
prompt students to access their independent and/or differentiated
work binders as needed; 5. other strategies discussed during in-class
3. Parent Communication: Keep me abreast of all parent
communications from now on, including email, phone, and parent
I realize that adjusting your current practices will require attention to
details you may or may not be familiar with, but want you to know that
we will support you with regular feedback. For the next 3-4 weeks, we
will make every effort to provide educational technician support while
data is being collected. We will reconvene on January 14th at 11:45 am
to review data and discuss next steps.
Id. Principal Bertinet copied this memorandum to Superintendent Davis and to Ms.
Richard’s personnel file. Id.
When Principal Bertinet met Ms. Richard after the memorandum, she said to
her, “Listen, I know you are upset with me.” Ms. Richard responded, “I am disgusted
that my students go to a school, where the principal is such a liar.” Principal Bertinet
replied, “I’m sorry you feel that way.”
Shortly after receiving the Bertinet memorandum, Ms. Richard emailed
Principal Bertinet to clarify matters. Id. 41. Ms. Richard said that she had been
using the behavior chart for both students, which was verified by her signed and
returned copies from their parents. Id. at 2. She asked what part of Nicole Winship’s
coaching was she not using. Id. She asked Principal Bertinet to be specific because
she wanted to know “where my short comings are.” Id. She said the behavior coach
had given her a plan only for one child and she asked when the plan for the other
child would be forthcoming. Id. She also inquired specifically about other statements
in the Bertinet memorandum. Id. Principal Bertinet replied that she and Vice
Principal Roberts would like to sit down with Ms. Richard and “discuss the ways in
which we can and will support you.” Id. at 1.
On December 9, 2014, Principal Bertinet and Vice Principal Roberts met with
Ms. Richard in her classroom. Ms. Bertinet said to Ms. Richard, “I’m sorry. I did not
know the meeting was going to be like that. I have never seen Dr. Davis that way.”
Vice Principal Roberts added, “I almost peed my pants.”
Knowing that Ms. Richard particularly objected to the bold part of the Bertinet
memorandum, which described her inconsistent follow-through, Principal Bertinet
agreed to remove the bold language. When she told Ms. Richard, Principal Bertinet
said that she would do so, even though Dr. Davis will be mad. On December 15, 2014,
Principal Bertinet issued another memorandum, which removed the bold portion of
her December 8, 2014 memorandum. Id. 39. Ms. Richard thanked Principal Bertinet
for deleting the bold part of the December 8, 2014 memorandum.
T.K., B.D., Charlene Richard and the RSU 57 Administration
The Court has found that the RSU 57 administration waged a campaign
against Ms. Richard following the December 8, 2014 meeting. One example of this
campaign involves B.D.’s continued troubles with T.K. in Ms. Richard’s classroom
after the December 8, 2014 meeting. On February 3, 2015, Ms. Richard observed an
incident involving T.K. and a female classmate in which T.K. had hit the girl. Ms.
Richard brought the girl to Ms. Bertinet’s office and she overheard Ms. Bertinet
asking the girl what B.D. had done to her. The girl told Principal Bertinet that it was
T.K., not B.D., but Ms. Bertinet decided to call B.D. to her office.
On February 3, 2015, B.D.’s father emailed Principal Bertinet about B.D. being
called to the principal’s office that day and asked whether there had been an incident
that had led to his son’s trip to the principal’s office. Id. 65.
emailed B.D.’s father and reassured him that the principal office visit was “simply a
friendly check-in.” Id. B.D.’s father emailed back on February 4, 2015, indicating
that he considered a trip to the principal’s office more significant. Id. He wanted to
know what had caused B.D. to be “pulled from the learning environment” and
wondered if B.D. had a target on his back. Id. Principal Bertinet responded by
suggesting a phone call. Id. Principal Bertinet and B.D.’s father spoke by telephone
Meanwhile B.D.’s mother emailed Principal Bertinet repeating their concerns
about B.D. being targeted by the administration and wondering whether their
advocacy for their son was causing problems for him.
responded to B.D.’s mother’s email by reassuring her that the administration was not
targeting B.D. and that
Administration meets with children on a regular basis when staff
members bring safety concerns to our attention. We will contact you
should there be a need in the future. I will be touching base with Mrs.
Richard to discuss a communication plan so that we’re all on the same
Id. (emphasis supplied). B.D.’s mother responded the next morning:
The miscommunication happening is from administration and not the
teacher. I do not know why you are bringing Mrs. Richard into this?
She is doing a great job and I feel like she is the only positive thing in
my son[’]s life while at WES.
Please understand that if there are any concerns in the classroom, Mrs.
Richard has made us aware. Her only concerns so far are minor
academic problems. She has been doing her job as the classroom
On March 5, 2015, B.D.’s mother emailed Ms. Bertinet again, this time
reporting that T.K. had turned the hot water on B.D.’s hands and B.D. was burned.
Id. 70. The school nurse informed B.D.’s mother that it was an accident, but when
B.D. arrived home, he told his mother that T.K. had deliberately turned the hot water
faucet on his hands. Id. B.D.’s mother asked to be informed whether there was a
witness and whether the incident was deliberate. Id. Principal Bertinet replied that
she would check with Ms. Richard. Id. Ms. Richard replied that she could not identify
the other student, but that when B.D. had gotten to the sink to wash his hands, he
said “Hey, ouch” and asked the other student “why s/he had done that.” Id. B.D.’s
father responded that they had already identified the other student. Id.
On March 11, 2015, Principal Bertinet emailed B.D.’s parents to inform them
that Ms. Richard had taken B.D. to the school nurse because another student had
stepped on B.D.’s hand. Id. 72. Principal Bertinet stated that “This did not appear
to be an intentional action on the other student’s part.” Id. However, B.D. had told
Ms. Richard that T.K. had admitted it and smiled. On March 12, 2015, B.D.’s father
replied, “If B.D. tells me it was T.K. or L.P., we’re going to have a big problem.” Id.
Principal Bertinet responded that “Administration is looking into this further. Please
understand that we take all classroom safety issues very seriously. We met with Mrs.
Richard yesterday to get more information about what transpired.” Id.
This response provoked an email from B.D.’s mother, who wrote that as a
parent she did not feel “that you are taking SAFETY seriously.” Id. She said that
B.D. has had a “never ending list of injuries . . . by the same two students.” Id. She
complained that “the lack of communication and effort to cover up events that you
label as accidents, is unacceptable.” Id. She reiterated that “I feel like Mrs. Richard
is doing her best, but I do not feel like you are supporting her as a teacher.” Id.
On March 13, 2015, Principal Bertinet emailed B.D.’s parents and informed
them that she was assigning Vice Principal Roberts to spend time each day in Ms.
Richard’s classroom and that an outside behavior specialist would come in and
provide feedback. Id. 74. B.D.’s mother responded with a long email in which she
castigated WES administration for wasting taxpayer money and reminded Principal
Bertinet that these safety issues had persisted since October, 2014. Id. She wrote
that “B.D. has been a punching bag since September, and [I am] appalled that you
have not taken this more seriously. I am no longer waiting for ‘the next incident’ to
occur nor am I willing to let my child be a target at WES while you continue to ‘collect
evidence.’ Id. She threatened to go to the paper if there was another incident and
warned, “I can only watch my child being bullied for so long before I take action.” Id.
Principal Bertinet wrote B.D.’s parents the next day, outlining the WES
administration’s efforts “in supporting [Ms. Richard’s] room in order to address all
concerns.” Id. 74-75.
Next, on March 17, 2015, Superintendent Davis wrote B.D.’s mother,
The statements you have made are not consistent and inaccurate with
what we are seeing and that is a result of you getting poor or inaccurate
Id. 123. Superintendent Davis told B.D.’s mother: “Your son is not being bullied.” Id.
He wrote: “Yes, your son’s hand was stepped on during the time the teacher was
distracted at the door with another situation . . . Your son was not injured, nor was
he being targeted. This was not a bullying incident.” Id. Superintendent Davis
assured B.D.’s mother that “there are no dangerous children in this classroom.” Id.
He ended by saying that “I do know that my children, and I suspect your child, will
exaggerate and embellish when recounting their day.” Id.
On March 26, 2015, T.K. stood up, headed over to B.D., and kicked him hard.
This precipitated an irate email from B.D.’s father, demanding action. Id. 78 (“Kicked
in the private parts, punched in the face, stomped fingers, burnt hands, thrown
chairs”). On April 1, 2015, Ms. Richard wrote Principal Bertinet and Vice Principal
Roberts and stated that “later in the day, T.K. walked over to B.D.’s reading spot and
kicked him.” Id. 80. On April 2, 2015, Ms. Richard met with Principal Bertinet, Vice
Principal Roberts, and Eleanor Roberts, and Ms. Richard told Principal Bertinet and
Vice Principal Roberts that B.D. and others in her classroom were being targeted and
repeatedly hurt by T.K.
On April 3, 2015, Principal Bertinet, Assistant Principal Roberts, Ms. Richard,
and Diane McClemment, the school librarian, met with B.D.’s parents. B.D.’s parents
read a definition of bullying and directly asked Ms. Richard whether B.D. was being
targeted by other students in the classroom and Ms. Richard responded that “I think
B.D. is one of the children that is targeted.” After some further discussion, Principal
Bertinet stated, “That is the first time that Ms. Richard has said that she felt he was
being targeted.” Ms. Richard responded, “May I clarify something? I have told you
that I felt there were several students in my room being targeted and that’s a fact
that came up at the meeting yesterday.” After some further discussion, Principal
Bertinet stopped the meeting, saying that “there are some inconsistencies with what
I’m hearing, what has been reported to you folks, what Mrs. Richard just shared. I’m
going to stop.”
During her testimony before this Court, Principal Bertinet testified that B.D.’s
parents came into the meeting “visibly very agitated” with a “hostile” demeanor. She
said that she felt uncomfortable and she could tell that Mrs. Roberts and others felt
uncomfortable. She testified that she looked and Mrs. McClemment acknowledged
that the meeting ought to be shut down. She said she asked B.D.’s parents to
reconvene at a time that they could collaboratively come to the table. She testified
that she told them the meeting was over and that they would need to reconvene at a
later time; she said she asked B.D.’s parents to leave the school grounds. Vice
Principal Roberts echoed Principal Bertinet’s recollection, describing B.D.’s parents
as “very angry” and “visibly upset.”
There is a stark contrast between the recollections of RSU 57 administrative
personnel and Ms. Richard concerning the events surrounding B.D. and T.K. The
Court expressly finds Charlene Richard’s version of the events surrounding B.D. and
T.K. to be more credible than the version of the events recounted by RSU 57
administrative personnel. The Court finds that T.K. had in fact targeted B.D. and
that RSU 57 administrators were aware of the targeting since the fall of 2014. The
Court is baffled by the RSU 57 administration’s persistent efforts to absolve T.K., to
minimize his misbehavior, and to blame his victims.
To the extent there is doubt as to whether the administration or Ms. Richard
has a more accurate memory of critical events, it is resolved by the tape recording of
the April 3, 2015 meeting. B.D.’s parents made a tape recording of the meeting and
Principal Bertinet’s and Vice Principal Roberts’ testimony is flatly contradicted by
the actual tape recording. There is no indication that B.D.’s parents were either
hostile or aggressive during the meeting. Principal Bertinet did not stop the meeting
because she and others had become uncomfortable with B.D.’s parents. She stopped
the meeting because she had made an inaccurate representation to B.D.’s parents
about T.K. and Ms. Richard had told them a contradictory truth.
Subsequent Actions by RSU 57 against Charlene Richard
The Court earlier set forth some of the details of RSU 57’s campaign against
Ms. Richard following the December 8, 2014 meeting. The campaign is summarized
by Mr. Nash’s testimony that Superintendent Davis came up to him at a later meeting
and said, “What is it I need to do to have Charlene Richard resign?” Having received
this message in different words from Superintendent Davis during the December 8,
2014 meeting, the WES administration set about making the Superintendent’s wish
come true by exerting intense administrative pressure on Ms. Richard, ultimately
causing her breakdown in the spring of 2015.
Charlene Richard’s Prima Facie Case
As noted earlier, under the McDonnell Douglas analysis, Ms. Richard bears
the initial burden of establishing a prima facie case of retaliation. To do so, she must
prove that “(1) she engaged in protected conduct; (2) she suffered an adverse
employment action; and (3) there was a causal connection between the protected
conduct and the adverse action.” D.B. v. Esposito, 675 F.3d 26, 41 (1st Cir. 2012).
“The burden of making out a prima facie case is ‘not onerous.’” Mesnick v. Gen. Elec.
Co., 950 F.2d 816, 823 (1st Cir. 1991) (quoting Texas Dep’t of Cmty. Affairs v. Burdine,
450 U.S. 248, 253 (1981)).
Applying these standards, the Court concludes that Ms. Richard has met her
burden to prove a prima facie case of unlawful retaliation by RSU 57. Ms. Richard
contends that her advocacy on behalf of disabled students in her classroom was the
cause of Superintendent Davis’ anger at the December 8, 2014 meeting and the
ensuing cause of WES’s retaliatory oversight and discipline. Both the Rehabilitation
Act and the ADA prohibit “retaliation against any person, whether disabled or not,
for opposing disability-based discrimination made unlawful by those statutes.” D.B.
ex rel. Elizabeth B. v. Espositio, 675 F.3d 26, 40 (1st Cir. 2012). The same applies to
the MHRA, 5 M.R.S. § 4633(1), and the WPA, 26 M.R.S. § 833(1).
The record amply reflects Ms. Richard’s advocacy for T.K. and L.P. during the
fall semester of 2014. Ms. Richard persistently complained to WES administration
about its failure to identify T.K. and L.P. as disabled and its further failure to support
her efforts to address their disabilities. She also complained to WES administration
about its failures to properly respond to the students with identified disabilities: (1)
Ms. Richard complained that she had not received the IEPs of the special education
students, (2) Ms. Richard complained when the educational technician was removed
from her classroom, (3) Ms. Richard advocated for T.K. and L.P. and urged the WES
administration to perform special needs assessments for both students; (4) Ms.
Richard referred T.K. and L.P. to the SAT, (5) Ms. Richard pressed WES
administration when the data collection and generalized behavior plans proved
inadequate, and (6) Ms. Richard persistently demanded that she receive educational
technician support to respond to their misbehavior, which she perceived was related
to their disabilities. These facts satisfy the advocacy requirement for a prima facie
RSU 57 argues that Ms. Richard’s advocacy was not protected under the law
because she did not claim that it engaged in any illegal conduct. Def.’s Post Trial
Mem. at 14-15. The Court disagrees. See D.B., 675 F.3d at 41 (“The general thrust
of appellants’ claims is that the Sutton school system retaliated against them for
advocating on behalf of D.B.’s right under the Rehabilitation Act and the ADA to be
free from disability-based discrimination in the provision of a FAPE [free appropriate
public education]. Such advocacy plainly constitutes protected conduct under these
statutes”). Similarly, here, Ms. Richard’s advocacy for T.K. and L.P. is protected
conduct under both statutes and their Maine analogues.
The Court also finds that RSU 57’s transfer of Ms. Richard and its
implementation of the PIP constituted adverse action in the facts of this case. The
legal standard is whether the employer’s action is “one that might well dissuade a
reasonable person from making or supporting a charge of discrimination.” Id. at 41.
It is true, as RSU 57 points out, that not all performance improvement plans
constitute adverse actions. Def.’s Post Trial Mem. at 12-13 (citing Bhatti v. Trustees
of Boston Univ., 659 F.3d 64, 73 (1st Cir. 2011)). But here, context is all, and the
Court finds that RSU 57 has been implementing Ms. Richard’s PIP, not in a
collaborative and constructive way, but in an unreasonable and punitive manner.
RSU 57’s PIP for Ms. Richard requires her to engage in minute by minute planning
on pain of violating the plan. In fact, when Ms. Richard was just a few minutes off
the planned transition from one subject to another, she was cited for violating the
PIP, requiring a degree of punctuality and precision rare in the first grade. Being
subject to a transfer and an invasive and unreasonably applied PIP would, in the
Court’s view, discourage the reasonable teacher from following Ms. Richard’s
This leaves the question of causation. This is the most difficult of the three
elements of Ms. Richard’s prima facie case. As the Court will discuss, ultimately the
Court determines that an absence of causation requires her case against RSU 57 to
Nevertheless, her advocacy for her disabled students, RSU 57’s failure to
respond with any constructive assistance, and its decision to transfer and punish her,
suffice for purposes of her prima facie burden of proof.
Moreover, the temporal proximity of Ms. Richard’s filing of the SAT requests
for T.K. and L.P. was “very close” to the December 8, 2014 meeting. Abril-Rivera v.
Johnson, 806 F.3d 599, 609 (1st Cir. 2015); Sánchez-Rodriguez v. AT&T Mobility
P.R., Inc., 673 F.3d 1, 15 (1st Cir. 2012) (“‘Very close’ temporal proximity between
protected activity and an adverse employment action can satisfy a plaintiff’s burden
of showing causal connection”). In the Sánchez-Rodriguez case, for example, Mr.
Sánchez-Rodriguz filed his EEOC complaint in February 2007 and was disciplined in
May 2007, a time gap the First Circuit views as “close enough to suggest causation.”
Id. In the words of the First Circuit, “when harassment follows hard on the heels of
protected activity, the timing often is strongly suggestive of retaliation.” Noviello v.
City of Boston, 398 F.3d 76, 86 (1st Cir. 2005).
Here, after school on Tuesday, December 2, 2014, while waiting for an evening
PTO meeting, Ms. Richard completed an old version of the WES referral form to the
SAT for both T.K. and L.P. and she dated the referral forms the next day, Wednesday,
December 3, 2014. Id. 34, 35. These forms formalized a process by which the SAT
Team would be forced to assess T.K. and L.P. and potentially designate them as
special education eligible, a fact that Superintendent Davis acknowledged would have
added additional costs to the RSU 57 budget. The temporal proximity between Ms.
Richard’s filing the SAT forms for these two students and the December 8, 2014
meeting is “close enough to suggest causation.” Sánchez-Rodriguez, 673 F.3d at 15.
In short, the Court concludes that Ms. Richard sustained her prima facie
burden of proving the three elements of a claim of retaliation: (1) protected conduct,
(2) adverse actions, and (3) causation.
RSU 57’s Legitimate, Nonretaliatory Reason for Its Adverse
To explain its adverse actions against Ms. Richard, RSU 57 reiterates the
difficult and occasionally chaotic nature of her classroom in the fall of 2014. Def.’s
Post Trial Mem. at 1-2. RSU 57 points to examples of other kindergarten teachers
who were able to control their classrooms despite having special needs students in
the class. Id. at 3. Furthermore, RSU 57 maintains that Ms. Richard’s response to
the acting out of the boys in her classroom was to demand more educational
technician support, rather than accepting her share of responsibility for the
misbehavior in the class. Id. at 3 (“[R]ather than focusing on the specific techniques
provided to her (student travel strategies, modeling and reinforcing expected
behaviors, time frame check-ins, access to independent and or differentiated work),
Plaintiff was concerned only about who else would be in her room to help her and that
she not be blamed for the bad behaviors of the boys”). RSU 57 argues that when
presented with the fact that Ms. Richard’s classroom was unsafe, it “had an obligation
to address the situation and that is what it attempted to do. That is not retaliation[.]
[T]hat is responsible administration of a school.” Id. at 4.
The Court concludes that RSU 57 sustained its burden to articulate a
legitimate, nondiscriminatory reason for doing what it did. Delgado Echevarria, 856
F.3d at 134. This is only a burden of production, not persuasion. Reeves v. Sanderson
Plumbing Prods., 530 U.S. 133, 142 (2000). Superintendent Davis’ explanation was
that he was frustrated with his perception that all the professionals in RSU 57,
including Ms. Richard, were themselves responsible for the lack of safety in Ms.
Richard’s kindergarten classroom and it was not an acceptable response to blame the
five-year old children in Ms. Richard’s classroom. This explanation is sufficient, in
the Court’s view, to sustain RSU 57’s burden of production.
Charlene Richard’s Ultimate Burden of Persuasion
Once RSU 57 provided a satisfactory justification for the challenged action,
“the McDonnell Douglas framework, with its intricate web of presumptions and
burdens, becomes an anachronism. The [factfinder], unaided by any presumptions,
must simply answer the question of whether the employee has carried the ultimate
burden of proving retaliation.” Palmquist v. Shinseki, 689 F.3d 66, 71 (1st Cir. 2012)
Ms. Richard bears this burden to prove her case by a
preponderance of the evidence. NLRB v. Wright Line, 662 F.2d 899, 904 (1st Cir.
After a plaintiff has met her burden to prove a prima facie case of retaliation
and her employer has sustained its burden of production to demonstrate a legitimate,
nondiscriminatory reason for its adverse actions, the burden shifts back to the
employee to show that the proffered reason is “pretextual and that retaliation was
the true reason.” Palmquist, 689 F.3d at 71. The Court easily concludes that Ms.
Richard has demonstrated that it is more likely than not that RSU 57’s proffered
reason for disciplining her was pretextual.
As the Court views it, Superintendent Davis’ motivation is key to
understanding RSU 57’s motivation. This is because Superintendent Davis was the
chief executive officer of RSU 57 and it was his “clear, direct and stern” chastisement
of Ms. Richard that set in motion the events leading to her filing this law suit.
Superintendent Davis testified that he was frustrated and angry with
everyone, including himself. He explained that he thought the adults were blaming
the children in the classroom for adult failures, and he emphasized that no one was
But there is no evidence that Superintendent Davis’ testimony on this point is
correct. Superintendent Davis’ sole and aggressive focus from his first to last words
at the December 8, 2014 meeting was exclusively Charlene Richard. There is no
evidence that Superintendent Davis directed his criticism during the December 8,
2014 meeting or thereafter to anyone other than Ms. Richard. Superintendent Davis
did not criticize Principal Bertinet, Vice Principal Roberts, or any of the members of
WES special education professional staff. He demeaned only Ms. Richard, namecalling her as “pathetic”, telling her that RSU 57 had wasted ten years on her, and
castigating her as “the problem”. He made no similar comments about or to anyone
else at the meeting or about anyone else involved in the controversy. He directed
Principal Bertinet to issue a memorandum, which became the starting point of RSU
57’s campaign against Ms. Richard and was placed in her personnel file.
Superintendent Davis issued or directed the issuance of no similar memoranda
against any other RSU 57 professional.
In short, the Court concludes that
Superintendent Davis’ explanation of his motivation was patently pretextual.
The True Reason
This conclusion does not end the Court’s analysis. Even if the Court finds, as
it has, that RSU 57’s proffered explanation—through Superintendent Davis—is
pretextual, Ms. Richard still bears the burden to prove that the real reason for RSU
57’s adverse action was retaliation for her advocacy for T.K. and L.P. Palmquist, 689
F.3d at 71 (The burden shifts back to the employee to show that the proffered reason
is “pretextual and that retaliation was the true reason”) (emphasis supplied). The
Court concludes that Ms. Richard has not met that burden. The Court examined the
record to try to understand the impetus behind Superintendent Davis’ angry response
on December 8, 2014.
There is nothing in RSU 57’s special education program or its institutional
interest that would have predicted Superintendent Davis’ outsized irritation in this
First, RSU 57 was bound both by the provisions of law and its own Board policy
to refer students suspected of needing special education services for assessments.
Thus, in advocating for T.K. and L.P., Ms. Richard was acting in a manner consistent
with both the law and RSU 57 policy.
Second, the Court accepts RSU 57’s underlying point that neither T.K. nor
L.P., nor T.K. and L.P. together, represented an unusual special education issue for
RSU 57. RSU 57 referred more than 120 students for special education services
during the 2012-13 school year, over ninety students during 2013-14, and about
eighty during 2014-15.
During the period from 2011 through 2016, the largest
percentage of referrals occurred during the kindergarten year when students were
five and six years old. Thus, the numbers do not support Ms. Richard’s contention
that RSU 57 was institutionally stressed by the presence of special education
students and was discouraging special education referrals.
Third, there is no evidence that the specific addition of either T.K. or L.P., or
both, to the special education program at RSU 57 would have caused a meaningful
budgetary challenge to the District.
There is evidence that there could be a
cumulative impact of multiple RTI referrals on RSU 57’s budget or a specific impact
from an unusual student. Superintendent Davis conceded that an unanticipated
number of referrals could result in additional cost to RSU 57, requiring a reallocation
of the budget and even a financial crunch. Davis Tr. 5:9-6:23.
Yet, there is no evidence in this record that RSU 57 was in fact suffering from
a budgetary squeeze in 2014-15. To the contrary, as just noted, the number of
referred special needs students fell from 120 in 2012-13 to eighty in 2014-15. Nor is
there any evidence that there was anything about the characteristics of either T.K.
or L.P. that would have caused RSU 57 any specific budgetary concern. Ms. Richard
was seeking additional education technician assistance in her classroom, but there is
no evidence in this record that the additional cost of one or two educational
technicians would have had a significant impact on RSU 57’s budget.
Fourth, RSU 57 had securely in place an administrative and staffing
superstructure designed to handle special education students, including a staffed
special education program in 2014-15. RSU 57 had employed many of the essential
personnel—Susan Prince, the Special Education Director, Joanne Bartlett, the
Guidance Counselor, Mary Bellavance, the RTI Coordinator, Carolyn Potter, a special
education teacher, and Nicole Winship, the Behavior Specialist, and these employees
would have been working on the special education program regardless of whether
T.K. and L.P. were added. Similarly, the RTI and the SAT teams were formed and
fully staffed as well.
At the same time, there is evidence in the record that RSU 57 was not fully
staffed in educational technicians. For example, the Court accepts Ms. Richard’s
testimony that WES administration periodically pulled Rutharian Gregoire, the
educational technician who had been assigned the three students with identified
disabilities, out of the classroom, sometimes for days at a time. In December 2014,
WES administration assigned Stacy Jette as an additional educational technician to
Ms. Richard’s class, and the Court accepts Ms. Richard’s testimony that with two
educational technicians, things settled down in her classroom. But on January 15,
2015, Principal Bertinet announced that “we will need to get back to one ed-tech in
the classroom.” Trial Ex. 55 at 3. WES administration began removing Ms. Gregoire
from Ms. Richard’s classroom and ultimately reduced the number of educational
technicians back to one, removing Ms. Gregoire and retaining Ms. Jette.
The record, however, leaves the Court unclear why the number of educational
technicians—two or one—in Ms. Richard’s classroom became such a sticking point
between RSU 57 and Ms. Richard. The record reflects that WES administration
assigned Rutharian Gregoire to more than one classroom, but it is unclear why. Id.
52 (“Starting on Wednesday, I need Ruthie to provide support to a student in Kerry
Dunnington’s class during the times when the identified students in Charlene’s room
are receiving specialized instruction”). There is no evidence about the added cost to
RSU 57 of one full-time educational technician, especially relative to the District’s
overall budget, so the Court cannot draw any conclusions on that issue. It may be
that there was a scarcity of available educational technicians in the RSU 57
catchment area, but this is speculation. There is a suggestion that the WES
administration thought that Ms. Richard should have been able to control a class
with one educational technician. Id. 55 at 3. (“Christine mentioned that we will need
to get back to one ed-tech in the classroom who can help support the identified the
[sic] students as well as Charlene taking a more active role with these students with
behaviors”) (emphasis supplied). But in the end, the record does not allow the Court
to make any solid conclusions about the issue of the number of educational
technicians in Ms. Richard’s classroom.
Finally, Ms. Roberts testified that T.K. was moved to a different classroom at
the end of March 2015 and that he has been found to suffer from attention deficit
disorder. He was deemed eligible for a Section 504 rehabilitation plan and has been
mainstreamed. In addition, after evaluation, L.P. was found eligible for special
education services after 2015 and he was placed in a low-ratio classroom. By second
grade, both T.K. and L.P. were placed in a low-ratio “hybrid” special education
classroom with a regular education teacher, two educational technicians, and a total
of eight students. As RSU 57 assessed both T.K. and L.P. and placed them in
individualized special education programs, it is less likely that RSU 57 was motivated
in its actions against Ms. Richard by her advocacy for the types of programs RSU 57
Individual Motivation: WES Administration
In assessing the motivation of Principal Bertinet and Vice Principal Roberts
for engaging in a retributive campaign against Ms. Richard, the Court finds that they
were doing the perceived bidding of Superintendent Davis. At the December 8, 2014
meeting and thereafter, it was clear that Superintendent Davis wanted, as he said to
Clinton Nash, to find a way to get Ms. Richard to resign her teaching position.
The difference in tone between pre- and post-December 8, 2014 communication
from WES administration is striking. Principal Bertinet and Vice Principal Roberts
essentially turned from being collaborative and supportive to being accusatory and
On November 9, 2014, for example, Principal Bertinet wrote Ms.
Thanks, Charlene. I appreciate your input and support. Yes, we all
need to feel like we’re working toward common goals and develop a
culture of support and openness.
Id. 29. By January 14, 2015, Principal Bertinet was issuing directives:
The following expectations will be reviewed at our meeting during the
week of 1/20/15:
Scheduling and down time
Conduct with staff
Pre-teaching/coaching of Bx expectations & feedback with students
Plan for when out of the classroom.
On January 20, 2015, Principal Bertinet accused Ms. Richard of
On January 26, 2015, Principal Bertinet wrote
I’m wondering if we should even meet with Charlene without either your
presence or a fellow administrator, as she is contacting Clint and Rob
with every email. She has yet to respond to other emails I’ve sent her
and seems to be picking and choosing what to respond to. Your
Id. 57. By April 6, 2015, Principal Bertinet had placed Ms. Richard on a Corrective
Action Plan. Id. 84. Later in April, 2015, Ms. Richard took a medical leave of absence
from work due to stress.
Having reviewed the record evidence, the Court finds that Principal Bertinet
and Vice Principal Roberts were following Superintendent Davis’ lead in exerting
intense pressure on Ms. Richard from the time of the December 8, 2014 meeting to
her April 2015 leave of absence and beyond.
Perhaps as newly-appointed
administrative executives, Principal Bertinet and Vice Principal Roberts were
anxious to prove their worth to Superintendent Davis. But the troubling aspect of
their joining in his campaign against Ms. Richard is that it led them to take
unsupported positions against not only Ms. Richard but also against the children who
were victims of T.K. and L.P.’s aggressive conduct. The Court cannot explain why
Principal Bertinet sought to deflect blame from T.K. to B.D. for hitting a female
classmate. It cannot explain why Vice Principal Roberts sought to minimize T.K.’s
inappropriate hands-on actions against a female classmate by claiming that he only
flipped her belt loops. It cannot explain why Principal Bertinet’s and Vice Principal
Roberts’ sworn recollections of the meeting with B.D.’s parents are so directly
contradicted by the contents of the tape recording of that meeting. The actions by
WES administration go beyond merely following the Superintendent’s wishes. In
sum, the evidence suggests that something was going on within the administration
of RSU 57 concerning T.K., L.P., B.D., and Charlene Richard, but the Court is not
sure what. The Court turns to Superintendent Davis.
Superintendent Davis’ Motivation
John Davis dedicated his professional life to public school education. After
obtaining his bachelor’s degree and teaching in Alaska, Superintendent Davis
attended Columbia University obtaining two master’s degrees and a Ph.D.
Superintendent Davis became RSU 57 Superintendent in 2010 and retired in 2015,
when he was succeeded as Superintendent by Larry Malone.
In attempting to determine whether RSU 57 retaliated against Ms. Richard,
the Court has focused on Superintendent Davis’ motivation in his handling of the
December 8, 2014 meeting and his subsequent determination to oust Ms. Richard as
a teacher in RSU 57. This is because Superintendent Davis ran the District. The
Court had an opportunity to assess Superintendent Davis during his testimony and
found him to be a highly intelligent, articulate, and forceful person. Consistent with
this impression, the Court has found that WES chief administrators, Principal
Bertinet and Vice Principle Roberts, were doing his bidding when they put a hard
administrative squeeze on Ms. Richard.
Accordingly, Superintendent Davis’
motivation is the key to this case.
Preliminarily, as would be expected, Superintendent Davis had very little
direct personal knowledge of what was transpiring at WES and in Ms. Richard’s
He largely relied on reports from WES administration to draw his
conclusions. For example, in the spring of 2014, Superintendent Davis did not review
Ms. Richard’s evaluation reports and did not visit her classroom. Instead in his
words, Superintendent Davis “relied on the principal” and testified that “Mr.
Petersen was the person responsible for that building.” Davis Tr. 10:7-20.
Charlene Richard first came to Superintendent Davis’ attention during the
2013-14 school year when then WES Principal Mark Petersen reported to
Superintendent Davis that Ms. Richard was having problems with a transfer student.
The specific student was from the Reiche School and Superintendent Davis learned
from Mr. Petersen that this student was ultimately moved from Ms. Richard’s
classroom to another classroom. Based on this experience and prior experience,
Superintendent Davis testified that he began to develop concerns about Ms. Richard.
In the fall of 2014, Principal Bertinet told Superintendent Davis that she was
concerned that Ms. Richard was sending students to the principal’s office on a regular
basis for behavioral check-ins. However, there is no evidence that Superintendent
Davis focused on Ms. Richard until he received a telephone call from B.D.’s parents
during the first week of December, 2014.
During his two early December
conversations with B.D.’s parents, Superintendent Davis became concerned about the
extent of their knowledge about other students in Ms. Richard’s classroom and he
thought that Ms. Richard may have been “feeding them information.” Id. 13:2-4.
Before the December 8, 2014 meeting, Superintendent Davis had not reviewed any
data on the behaviors of the children whose conduct was the source of concern, had
not received any data on the actual number of principal office visits from Ms.
Richard’s classroom, and had not observed Ms. Richard in her classroom. Id. 14:1325. Superintendent Davis had asked Principal Bertinet and her team to observe Ms.
Richard’s classroom and had received reports that Ms. Richard was having difficulty
controlling the students’ behavior in her classroom. Id. 15:1-17:25.
Given Superintendent Davis’ general, supervisory knowledge of what was
actually occurring in Ms. Richard’s classroom, his conduct of the December 8, 2014
meeting is simply inexplicable. He was accusatory, derogatory, and unprofessional.
Even though it is possible that Ms. Richard’s advocacy for T.K. and L.P. set off
Superintendent Davis, the Court cannot find based on this record that it is more likely
than not that his anger was in retaliation for her advocacy. In fact, there is scant
evidence that Superintendent Davis was even aware of her advocacy as of the
December 8, 2014 meeting. For example, the evidence is equivocal at best as to
whether, as of the December 8, 2014 meeting, Superintendent Davis was aware that
Ms. Richard had completed the SAT paperwork for T.K. and L.P.
If not Ms. Richard’s advocacy, then the question is what caused
Superintendent Davis to act so angrily and inappropriately against Ms. Richard and
to set in motion what followed. First, it could have been that Superintendent Davis
became convinced during his two conversations with B.D.’s parents that Ms. Richard
had violated her obligation of professional confidentiality by discussing specifics
about T.K. and L.P. with B.D.’s parents. This was the first issue Superintendent
Davis raised about Ms. Richard when he interrupted Principal Bertinet’s
presentation. If Ms. Richard had violated the confidentiality rules, it would have
been a serious matter. But there is no evidence she had done so. Ms. Richard was
not the only possible source of information for B.D.’s parents. Yet, if Superintendent
Davis was convinced that Ms. Richard had acted unethically, his view could have
colored his assessment of her professionalism. Again, if so, his angry reaction would
not have been in retaliation for her advocacy for T.K. and L.P. and other special
education students, but because he thought (probably erroneously) that she had
violated their right to confidentiality.
Second, there was some oblique testimony about Superintendent Davis’
concern about the kindergarten teachers at WES as a group. Superintendent Davis
testified that he had decided early on that the kindergarten teachers, including
Charlene Richard, Eleanor Roberts, Jennifer Elsaessor, and Meredith Bolduc, needed
to be broken up. He said that he based this view on the advice of Principal Bertinet,
and Principal Bertinet confirmed that she was concerned about the need to break up
the kindergarten team.
Perhaps, Superintendent Davis together with Principal
Bertinet viewed B.D.’s parents’ complaints as an opportunity to start to break up this
group of kindergarten teachers.
For example, there was evidence that
Superintendent Davis came down hard on Ms. Elsaessor on an issue, causing her to
become upset in one of their meetings. But it was never clear what the problem was
with the kindergarten teachers as a whole. If Superintendent Davis acted against
Ms. Richard motivated by a desire to break up this group of kindergarten teachers,
the Court cannot find, based on this record, that his motivation was caused by Ms.
Richard’s advocacy for disabled students.
Third, Superintendent Davis may well have thought that Ms. Richard was
unfairly targeting T.K. and L.P. That spring, Superintendent Davis began to develop
concerns about Ms. Richard’s ability to manage unruly kindergarten students.
Principal Petersen’s reports that Ms. Richard had problems with a student or two
annually were echoed by Principal Bertinet’s reports that Ms. Richard was having
problems with T.K. and L.P. in the fall of 2014. In fact, Superintendent Davis told
Ms. Richard that if she could not handle twenty-something, five-year-olds, they would
find her a job she could handle. Superintendent Davis summarized his criticism by
saying, “You are the problem, not the boys.” RSU 57’s position in this case tracks this
view of the record.
RSU 57 says that “[h]aving spent virtually his entire life
advocating for students, [Superintendent Davis] was frustrated when it appeared
that Plaintiff was blaming two little boys for problems in her classroom.” RSU 57
Post Tr. Reply at 12-13.
Even though this is a plausible explanation for Superintendent Davis’ conduct
on December 8, 2014, the Court finds that he was wrong about Ms. Richard.
Superintendent Davis told Ms. Richard that C.S. had never had her hands burned
and that she had eczema, and that T.K. had never put his hands down C.S.’s pants,
that it “never happened.” Based on this record, the Court finds Superintendent Davis
was incorrect on these facts. Nor would Superintendent Davis have had any basis for
his asserted personal knowledge about what had happened to the children in Ms.
Richard’s classroom. Later, in a manner consistent with his self-confident view of
unknown facts, Superintendent Davis assured B.D.’s parents that B.D. was not being
targeted, when in fact B.D. was being targeted, and furthermore, Superintendent
Davis implied that B.D. himself was embellishing stories to his parents. Throughout
this ordeal, Superintendent Davis was not merely misinformed, but he belittled
anyone who disagreed, including B.D.’s parents, C.S.’s parents, even B.D. himself,
and of course Charlene Richard.
To be clear, based on this record, the Court finds that Ms. Richard was not
targeting either T.K. or L.P. The Court’s impression of Ms. Richard as an elementary
teacher is extremely positive, consistent with her prior exemplary record at WES and
with the accolades of B.D.’s parents. Instead, Ms. Richard was presented with a class
of twenty-two kindergarteners and she was concerned that T.K. and L.P. were
making her classroom scary and unsafe for her other students. She never sought to
have T.K. or L.P. removed from her classroom. She was seeking an appropriate level
of support within the classroom so that all her students, including T.K. and L.P.,
could have a positive experience in kindergarten, a level of support T.K. and L.P. later
actually received at RSU 57.
But Superintendent Davis was either misinformed or he jumped to erroneous
conclusions about Ms. Richard. Critically, however, for purposes of this lawsuit, the
Court does not find that the Superintendent’s mistaken conclusions were caused by
Ms. Richard’s advocacy for T.K. and L.P.
They seem to have been caused by
Superintendent Davis’ misunderstanding of what was actually happening inside Ms.
Richard’s classroom, and were not based on his understanding that Ms. Richard was
advocating for T.K. and L.P., but on his misimpression that Ms. Richard was blaming
T.K. and L.P. for her inability to do her job.
What is surprising is that Superintendent Davis’ erroneous views of Ms.
Richard persisted and intensified. Commonly, when someone of Superintendent
Davis’ high level of competence badly overreacts, he or she self-corrects. It is true
that in mid-January, 2015, Superintendent Davis asked Ms. Richard. “Do you know
what it means to deescalate a situation?” But by then the die was cast. The WES
administration had set about proving Superintendent Davis’ declared view of Ms.
Ms. Richard knew what they were doing and she
understandably became extremely defensive. In other words, Superintendent Davis’
firmly-held misunderstandings had very real and regrettable consequences for Ms.
Lastly, the Court may well be incorrect in its analysis of Superintendent Davis’
Absent this explanation, however, the Court finds his conduct
inexplicable. In the context of this case, as Ms. Richard has the burden of proof, an
absence of probable explanation leaves her case unproven. In sum, because the Court
does not find that Ms. Richard has proven it is more likely than not that
Superintendent Davis was motivated against her by Ms. Richard’s advocacy for
disabled students, her retaliation and similar claims against RSU 57 must fail.
At the close of the evidence in this case, the Court urged the parties, if they
could, to try and settle this case and warned them that, if the Court were required to
issue an opinion, it would be compelled to make some harsh judgments about the
participants in this most unfortunate matter. The Court regrets having to make
unedifying findings about the credibility of some of the professional witnesses. Even
so, having taken a measure of the main players in this episode: former
Superintendent John Davis, current Superintendent Larry Malone, Principal
Christine Bertinet, Vice Principal Melissa Roberts, and Charlene Richard, the Court
views them all as dedicated and capable educational professionals. Ironically, in
seeking to protect RSU 57 students from unfair targeting, the RSU 57 administration
ended up unfairly targeting Charlene Richard, just not unlawfully. To the extent this
targeting is still going on, the Court urges RSU 57 to reconsider its treatment of Ms.
Richard and to use this trying experience, as good teachers would, to make RSU 57
an even better place to learn and to teach.
The Court DENIES Charlene Richard’s Complaint against Regional School
Union 57 on all counts and ORDERS that judgment be issued for the Defendant and
against the Plaintiff.
/s/ John A. Woodcock, Jr.
JOHN A. WOODCOCK, JR.
UNITED STATES DISTRICT JUDGE
Dated this 7th day of November, 2017
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