Richard v. Reg'l Sch. Unit 57

• Decision Date: 21 August 2018
• Docket Number: No. 17-2200,17-2200
• Parties: Charlene RICHARD, Plaintiff, Appellant, v. REGIONAL SCHOOL UNIT 57, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

901 F.3d 52

Charlene RICHARD, Plaintiff, Appellant,

v.REGIONAL SCHOOL UNIT 57, Defendant, Appellee.

No. 17-2200

United States Court of Appeals, First Circuit.

August 21, 2018

Richard L. O'Meara, with whom Stacey D. Neumann and Murray, Plumb & Murray, Portland, ME, were on brief, for appellant.

Jeana M. McCormick, with whom Melissa A. Hewey and Drummond Woodsum, Portland, ME, were on brief, for appellee.

Before Torruella, Lynch, and Kayatta, Circuit Judges.

KAYATTA, Circuit Judge.

Charlene Richard, formerly a kindergarten teacher at Waterboro Elementary School, sued Regional School Unit 57 ("RSU 57"), claiming that by retaliating against her for her advocacy on behalf of students with disabilities, it violated the Americans With Disabilities Act, Rehabilitation Act, Maine Human Rights Act, and Maine Whistleblower Protection Act. After a five-day bench trial and post-trial briefing, the district court largely credited Richard's version of events, but nevertheless found that she had not met her burden of proving that the adverse actions she suffered came as a result of her advocacy. Accordingly, the district court entered judgment for RSU 57. Seeing no clear error in the district court's well-explained findings, we affirm.

I.

In 2006, Charlene Richard began teaching full-time at Waterboro Elementary School. Prior to the conclusion of the 2013–14 school year, Richard received positive reviews of her teaching. She had no complaints from parents, colleagues, or the school, and had no reprimands on her employment record. In short—as the district court found—her record was exemplary.

Richard usually had a few special education students assigned to her classroom each year. When she was assigned such a student, her practice was to review the student's Individualized Education Plan ("IEP") and contact the student's parents. In addition to managing students who already had IEPs, Richard was often in a position to determine whether other students had potential learning disabilities warranting referral to appropriate professionals for intervention.

In the relevant time period, special education in RSU 57 worked as follows: Students in need of special education fell into three categories: (1) those previously identified as qualifying for special education, (2) those not previously identified as qualifying but suspected of qualifying through testing, and (3) those not previously identified as in need of special education or suspected of qualifying via testing, but subsequently identified as potentially in need of special education. Though RSU 57 relied upon teachers to identify students in need of assistance, it encouraged those teachers, prior to referring a student to the IEP team, to use a process called "Response to Intervention" ("RTI"). RTI is a four-tiered process involving escalating support for students potentially in need of special education, the goal of which is to help a student without formally labeling him or her as disabled and creating an IEP. However, parents have a legal right to refer their children to the IEP team at any time and avoid the RTI process entirely.

Issues concerning Richard's interaction with the special education system arose in 2012, when she expressed concern that a student in her class may have been in need of special education. The student was ultimately diagnosed with autism

and placed in a special program. Then, in March 2014, a student known as K.M. transferred to Waterboro Elementary School ("WES") and joined Richard's class. Richard had received no information about this student and was not able to contact his parents, but noted various disturbing behaviors. When she contacted K.M.'s teacher from his prior school, she learned that K.M. had issues there as well, and was being fast-tracked into RTI tier three prior to his transfer. When Richard sought help from the WES administration, the administration only offered the prospect of buzzing the principal's office if K.M. became violent.

Prior to the 2014–2015 school year, Richard learned that her class would contain three students—K.N., G.T., and L.S.—previously identified as requiring special education. Richard was concerned that her class would be too large to allow her to effectively support these students. In addition, despite making multiple requests, Richard did not receive copies of these student's IEPs until after the school year had already begun. After the year started, it became clear that two other students in her class—T.K. and L.P.—might also be in need of intervention. These students were sometimes violent, and targeted two other students—B.D. and C.S.—in particular. A behavior specialist was brought in to assist with the situation; she checked in from time to time on the class, created a "behavior plan" for L.P., and suggested using the same plan for T.K., without conducting an independent assessment of T.K. Later that year, Richard reported seeing this behavioral specialist holding the door to the "break room"—a secluded room where students having difficulty could go—closed, and reported overhearing the same specialist requesting that a janitor remove the interior handle on the door.¹ The administrative procedures manual for RSU 57 prohibited such actions.

As the year went on, it became clear that T.K. and L.P.'s behavior was a significant issue. Many parents complained, and in December, C.S.'s parents emailed Richard, as well as Principal Christine Bertinet, to inform them that T.K. had tried to pull down C.S.'s pants and had previously turned hot water on C.S. while she washed her hands. In addition, Richard became aware that L.P. had thrown a chair at B.D. On December 2, 2014, the same day C.S.'s parents sent the email, Richard filled out a form referring T.K. and L.P. to the Student Assessment Team ("SAT"), a group tasked with helping students with behavioral issues.

B.D.'s mother, angered at what she perceived as unsafe classroom conditions, called Superintendent John Davis on December 4, 2014, and told him that B.D. had been subjected to physical abuse. She was complimentary toward Richard, but wanted to know how RSU 57 planned to address the situation. She requested a meeting to address the issue and one was scheduled.

The next day, Superintendent Davis emailed Richard, Principal Bertinet, Vice Principal Melissa Roberts, and Clinton Nash, Richard's union representative, to set up a meeting for the group to discuss issues in Richard's classroom. At the meeting, Superintendent Davis accused Richard of breaching student confidentiality with parents. Superintendent Davis then told Richard that she was "pathetic," that RSU 57 had wasted ten years on her, and that if she could not handle twenty or more students, they would find her a job she could handle. Superintendent Davis said that parents had been complaining about Richard for years, though he declined to identify any such parents when Richard pressed the issue. Superintendent Davis denied that several incidents said to have occurred in Richard's classroom had ever happened, told Richard, "You are the problem, not the boys," and stated that an educational technician would be the "eyes and ears" of the administration, observing Richard. Superintendent Davis ended the meeting by telling Richard to "get back to class and teach."²

After the meeting, Principal Bertinet gave Richard a memorandum, and placed a copy of this memorandum in Richard's personnel file, outlining an expectation that Richard would implement the behavior plan in her classroom, work with her and Vice Principal Roberts on behavior management techniques, and keep the administration abreast of all parent communications. The memorandum also expressed concern that Richard was not implementing the behavior plan. Richard responded, asking Principal Bertinet to be more specific about any ways in which Richard was failing to implement the behavior plan. Ultimately, Principal Bertinet revised the memorandum to eliminate the portion referring to Richard's failure to implement the behavior plan.

Behavioral issues persisted in Richard's classroom. In response, Richard sought assistance, arguing that the administration unduly minimized the fact that T.K. was targeting another student, B.D.

At some point during the course of these events, Superintendent Davis said to Nash, "What is it I need to do to have Charlene Richard resign?" Eventually RSU 57 transferred Richard to a different school and placed her on a performance improvement plan. Richard then sued, alleging that RSU 57's actions amounted to retaliation against her for her advocacy for disabled students.

The district court held a five-day bench trial on the matter. It then solicited post-trial briefing from both parties. In November 2017, it issued a sixty-seven page decision containing findings of fact and conclusions of law. Richard v. Reg'l Sch. Unit 57, 296 F.Supp.3d 274 (D. Me. 2017). In its factfinding, the district court largely credited Richard's version of events. It then chose to structure its analysis of the evidence by using the method adopted in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), for analyzing motions for summary judgment in discrimination cases.

As the district court itself noted, there is some question as to whether the McDonnell Douglas analysis is even useful at the trial stage. Richard, 296 F.Supp.3d at 277–78, 301. We have noted that once a plaintiff makes out a prima facie case, "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) (citations omitted). And because a plaintiff who defeats summary judgment must have offered, at that stage, enough evidence to meet its burden of production on the prima facie case, examples of plaintiff...