United States Court of Appeals
For the First Circuit
No. 17-2200
CHARLENE RICHARD,
Plaintiff, Appellant,
v.
REGIONAL SCHOOL UNIT 57,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. John A. Woodcock, Jr., U.S. District Judge]
Before
Torruella, Lynch, and Kayatta,
Circuit Judges.
Richard L. O'Meara, with whom Stacey D. Neumann and Murray,
Plumb & Murray were on brief, for appellant.
Jeana M. McCormick, with whom Melissa A. Hewey and Drummond
Woodsum were on brief, for appellee.
August 21, 2018
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
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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.
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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
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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
1 Richard reported this incident after Principal Bertinet,
Vice Principal Roberts, and the behavioral specialist demanded
that Richard complete a "seclusion report" for L.P., even though
she had never taken him or any other student to the break room as
a disciplinary measure.
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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
2 Perhaps unsurprisingly, Superintendent Davis's recollection
of this meeting was quite different. However, the district court
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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
credited Richard's testimony as to what happened in the meeting,
not Superintendent Davis's, finding his conduct in the meeting to
be "accusatory, derogatory, and unprofessional." Richard v. Reg'l
Sch. Unit 57, 296 F. Supp. 3d 274, 306 (D. Me. 2017).
Superintendent Davis himself admitted that he was "frustrated and
angry" during the meeting. Id. at 293. These facts are consistent
with other testimony about the meeting, id. at 291–94, and RSU 57
does not now challenge the district court's findings as to what
occurred at the meeting.
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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 (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
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(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 plaintiffs who make it to trial but fail to present a
prima facie case will be few and far between. In short, once a
case has reached trial, the McDonnell Douglas analysis has
virtually no work left to do.
The Ninth Circuit has reasoned similarly, noting that
once each party meets its burden of production, the McDonnell
Douglas framework is no longer relevant. See Sanghvi v. City of
Claremont, 328 F.3d 532, 537 (9th Cir. 2003) (citing St. Mary's
Honor Ctr. v. Hicks, 509 U.S. 502, 510 (1993)). The Tenth Circuit
has gone even further, stating that "the three-part McDonnell
Douglas burden-shifting analysis is limited to the summary
judgment context. Once there has been a full trial on the merits,
the sequential analytical model adopted from McDonnell Douglas
. . . drops out and we are left with the single overarching issue
whether plaintiff [met her burden of persuasion]." Kendrick v.
Penske Transp. Servs., Inc., 220 F.3d 1220, 1226 (10th Cir. 2000)
(ellipsis in original) (internal quotation marks omitted) (quoting
Fallis v. Kerr-McGee Corp., 944 F.2d 743, 744 (10th Cir. 1991)).
Be that as it may, in this particular case neither party
complains that the district court -- at the parties' joint behest
-- employed the McDonnell Douglas mode of analysis. In so
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proceeding, the court first asked whether Richard made out a prima
facie case of retaliation, then whether RSU 57 articulated a
nonretaliatory reason for its actions, and if so, whether Richard
demonstrated that the nonretaliatory reason was in fact pretext.
See McDonnell Douglas, 411 U.S. at 802–07. The district court
found that Richard had made out a prima facie case and that RSU 57
had offered a legitimate reason for its actions (Superintendent
Davis's frustration with Richard and other professionals'
inability to manage the kindergarten classroom at issue). The
court also found that Richard demonstrated that this reason was
pretextual, given that Superintendent Davis had taken no action
against any other education professional at Waterboro Elementary
School as a result of the issues in Richard's classroom. Richard,
296 F. Supp. 3d at 300–02.
Having found that the reason given by RSU 57 for its
adverse actions against Richard was untrue, the district court
turned to the ultimate question: Had Richard proved that it was
more likely than not that her advocacy for students with
disabilities had actually prompted the actions against her? The
district court was unconvinced. It explained, most notably, that
it found scant evidence that Superintendent Davis was even aware
of Richard's advocacy as of the December 8, 2014 meeting. It even
found the evidence "equivocal at best as to whether . . . Davis
was aware that Ms. Richard had completed the SAT paperwork for
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T.K. and L.P." Id. at 306. The district court also found that
advocacy for a handful of children with disabilities was not the
type of activity that was likely to have prompted Superintendent
Davis's ire. Id. at 302–04. RSU 57 routinely referred 80 to 120
students for education services each year, with most of the
referrals coming from kindergarten. During the year relevant here,
there were only 80 referrals, with no evidence that a few more
would have been unusual or caused any budgetary pressure. Id. at
302. Nor was the district court convinced that there was "anything
about the characteristics of either T.K. or L.P. that would have
caused RSU 57 any specific budgetary concern." Id. The district
court then analyzed several other possible causes of
Superintendent Davis's animosity toward Richard, concluding that
the only explanation that was not "inexplicable" was that
Superintendent Davis was perhaps operating on the incorrect
impression that Richard was unable to manage her classroom. Id.
at 307. But as the district court noted, this did not mean that
his actions came as a result of Richard's advocacy. As for other
possible indicia or sources of bias that may have influenced
Superintendent Davis, the district court found that none existed.
Id. It also found that Principal Bertinet and Vice Principal
Roberts, though hostile to Richard, appeared to be doing
Superintendent Davis's bidding, rather than acting out of any
animus connected with Richard's advocacy. Id. at 304. The
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district court entered judgment for RSU 57, and this appeal
followed.
II.
A.
Richard makes only one argument that at least plausibly
claims legal, rather than factual, error. Richard contends that
the district court improperly required her to present evidence of
causation beyond that which supported her prima facie case. Citing
Lang v. Wal-Mart Stores East, L.P., 813 F.3d 447, 457 (1st Cir.
2016) and Dichner v. Liberty Travel, 141 F.3d 24, 30 (1st Cir.
1998), she posits that once a district court has found an
employer's reason for acting to be pretextual, the court must find
a violation.
This argument confuses two concepts: what the evidence
permits a factfinder to do, and what the evidence compels a
factfinder to do. Richard is correct that once a factfinder is
satisfied that an employer's reasons for taking an adverse action
are pretextual, it may find for the plaintiff on causation without
further evidence. See Lang, 813 F.3d at 458. But Richard cites
no authority for the proposition that once pretext is established,
a factfinder must find in the plaintiff's favor. To the contrary,
Lang states that "rejection of the employer's proffered reasons
will permit, though not compel, the trier of fact to infer the
ultimate fact of [retaliation]." Id. (emphasis added)
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(alterations omitted) (quoting In re Seacoast Fire Equip. Co., 777
A.2d 869, 873 (N.H. 2001)).
Nothing in the record compels the conclusion that the
district court misunderstood these precedents and believed that
Richard was required as a matter of law to produce additional
evidence beyond that which established pretext. Rather, the
district court thoughtfully explained that while Richard had
presented evidence sufficient to show RSU 57's reasoning to be
pretextual, this evidence alone did not convince the court that
RSU 57's true reason for acting was to retaliate against Richard.
In so doing, the district court pointed to our decision in
Palmquist, 689 F.3d at 71, which held that a plaintiff such as
Richard needs to show that the proffered reason is "pretexual and
that retaliation was the true reason." Richard, 296 F. Supp. 3d
at 301 (emphasis added) (quoting Palmquist, 689 F.3d at 71). In
short, the finding of pretext did not guarantee Richard a win, and
the district court did not misunderstand the law.
B.
Richard's remaining arguments fall into two categories:
(1) the district court "failed to consider" certain evidence,
proposed inferences, or arguments raised by Richard; or (2) the
district court erred in its factual findings based on what it did
consider. We deal with these two categories of argument in turn.
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1.
We address first Richard's various arguments that the
district court failed to consider certain points Richard says it
should have considered. Richard makes this type of argument in
various versions at least seven times in her opening brief. But
in arguing that the district court failed "to consider" a point,
Richard makes no claim that the trial judge slept through the
trial. Rather, what she appears to mean is that the district
court's written opinion did not expressly acknowledge and address
certain points in her favor.
Federal Rule of Civil Procedure 52 dictates the manner
in which district courts should state the result following a bench
trial. It requires that the district court "find the facts
specially and state its conclusions of law separately." Fed. R.
Civ. P. 52(a)(1). These findings and statements may on occasion
provide a toehold for a successful appeal because they reveal a
clear and consequential error in the trial court's factfinding.
See Benham v. Lenox Sav. Bank, 292 F.3d 46, 48 (1st Cir. 2002)
(reversing a judgment following a bench trial upon a determination
that the court's judgment had been based on a theory offered by
neither party and unsupported by the evidence).
None of this means, though, that a trial court's findings
of fact need expressly respond like a debate champion to every
evidentiary or factual contention made by the losing side. See
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Nevor v. Moneypenny Holdings, LLC, 842 F.3d 113, 119 (1st Cir.
2016). As the application notes to the Rule's 1946 amendment
state, "the judge need only make brief, definite, pertinent
findings and conclusions upon the contested matters; there is no
necessity for over-elaboration of detail or particularization of
facts." Fed. R. Civ. P. 52(a), advisory committee's note to 1946
amendment. Rule 52 is "not meant to be applied mechanically," and
where "the district court's decision contains sufficient findings
and reasoning to make plain the basis for its disposition of the
case," we pay little heed to claims that it should have done more.
Valsamis v. González-Romero, 748 F.3d 61, 63 (1st Cir. 2014).
Rather, we consider arguments such as contentions that the trial
court misapplied the law, made plain errors of consequential fact,
failed to make plain the facts and reasoning upon which it chose
to base its conclusion, or rested that conclusion upon a record
insufficient to provide the required support.
In view of the foregoing, we reject in bulk Richard's
arguments that in one way or another rest only on a complaint that
the trial court's sixty-seven page opinion did not mention or
"failed to address" certain facts and assertions advanced by
Richard.
2.
Richard marshals her claims of factual error in an effort
to secure the reversal of the district court's finding that RSU 57
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lacked retaliatory motive. "The issue of retaliatory motive . . .
presents 'a pure question of fact,' and the trial court's
determination is reviewed under the clearly erroneous standard."
Hazel v. U.S. Postmaster Gen., 7 F.3d 1, 4 (1st Cir. 1993) (quoting
Pullman-Standard v. Swint, 456 U.S. 273, 287–88 (1982)). We have
made clear that "[f]ollowing a bench trial, an appellate tribunal
is not warranted in substituting its judgment for that of the trial
court. . . . [W]e are not free to reject . . . [the district
court's] findings of fact . . . 'unless, on the whole of the
record, we form a strong, unyielding belief that a mistake has
been made.'" Foster v. Dalton, 71 F.3d 52, 55 (1st Cir. 1995)
(quoting Cumpiano v. Banco Santander P.R., 902 F.2d 148, 152 (1st
Cir. 1990)). And "[w]hen the evidence presented at a bench trial
supports plausible but competing inferences, the court's decision
to favor one inference is not clearly erroneous." Torres-Lazarini
v. United States, 523 F.3d 69, 72 (1st Cir. 2008).
Richard argues first that the district court erred in
declining to infer that resource considerations motivated RSU 57's
actions. As Superintendent Davis testified, educating special
needs students can be expensive. But as the district court noted,
there was no evidence that RSU 57 was suffering from a budgetary
squeeze and no evidence that T.K. and L.P. had unusually expensive
special education needs, while there was evidence that T.K. and
L.P. were in fact ultimately placed in special education programs.
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Richard, 296 F. Supp. 3d at 303. From this, the district court
inferred that it was unlikely that resource concerns motivated
RSU 57's actions. We cannot deem this inference impermissible,
and thus it was not reversible error for the district court to
make it.
Richard next argues that the district court "should have
held against RSU 57 the bureaucratic shell game involving who knew
what and who decided what." She posits, citing Tejada-Batista v.
Morales, 424 F.3d 97, 102 (1st Cir. 2005), that because multiple
individuals (Principal Bertinet, Vice Principal Roberts, and
Superintendent Davis) were involved in sanctioning Richard, the
district court should have taken the so-called "sequence of actors"
approach and imputed each individual actor's motivations to
RSU 57. The problem for Richard is that the district court did
precisely this, directing its attention specifically not just to
Superintendent Davis, but also to the "motivation of Principal
Bertinet and Vice Principal Roberts." Richard, 296 F. Supp. 3d at
304. Looking first at the time period prior to the December 8
meeting, the court found Principal Bertinet and Vice Principal
Roberts to have been "collaborative and supporting" in dealing
with Richard. Id. This was at a time when they already well knew
of complaints and advocacy by Richard on behalf of students with
disabilities. Only after the December 8 meeting, when they learned
of Superintendent Davis's animus toward Richard, did they begin
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behaving adversely toward Richard. Most reasonable people would
conclude from this chronology that Richard's complaints raised no
retaliatory ire in the two administrators. Rather, as the district
court found, they changed their behavior to follow their boss's
"lead." Id.
The district court also found that after learning of
Superintendent Davis's wish "to find a way to get Ms. Richard to
resign," the two administrators thereafter "engage[d] in a
retributive campaign against Ms. Richard." Id. In so doing, they
were "doing the perceived bidding of Superintendent Davis." Id.
Emphasizing the point, the district court expressly found that
Principal Bertinet and Vice Principal Roberts "were following
Superintendent Davis's lead in exerting intense pressure on Ms.
Richard from the time of the December 8 meeting to her April 2015
leave "of absence and beyond." Id.
As the district court explained, Principal Bertinet and
Vice Principal Roberts not only took actions directed at Richard,
but also at victims T.K. and L.P. The district court chronicled
these events, aptly observing that the two administrators
subsequently went "beyond merely following the superintendent's
wishes." Id.
Our dissenting colleague seems to read this later
observation as meaning that the two administrators undertook
retributive actions against Richard for reasons other than
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attempting to please Superintendent Davis. But the district court
neither said nor even implied such. Indeed, the examples the
district court cited of the two administrators going beyond
Superintendent Davis's direction -- shifting blame from T.K. to
B.D., minimizing T.K.'s inappropriate behavior, and contradicting
tape recorded statements concerning a meeting with B.D.'s parents
-- all concern hostility toward "the children who were victims of
T.K. and L.P.'s aggressive conduct." Id. Simply put, the district
court plainly found that Principal Bertinet and Vice Principal
Roberts consistently acted harshly toward Richard after December
8 for a single reason: to do Superintendent Davis's bidding. And
the chronology strongly -- and certainly sufficiently -- supported
this factual finding.
So we summarize: The district court carefully
considered and expressly discussed the motivations of the
principal and vice principal, made clear why the chronology belied
retaliation as the more likely motive, and expressed uncertainty
as to what was otherwise going on concerning the whole situation
with the children in question. Based on the record, we see no
clear error in this analysis.
Richard's final argument is that because the district
court found RSU 57's explanation -- via Superintendent Davis --
for its actions to be pretextual, the court should have inferred
that the true reason must have been retaliatory animus. This
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argument is functionally the same as the contention, rejected
supra, that if a district court finds pretext, it necessarily must
find retaliatory motive. Though such an inference is permitted,
it is not required, and the district court's failure to draw
Richard's preferred inference was not clear error.
III.
The bottom line is this: The district court's sixty-
seven page opinion sets forth more than sufficient findings and
reasoning to make plain the basis for its disposition of the case.
Specifically, it explains in detail why the court was not persuaded
that RSU 57 acted with animus prompted by Richard's advocacy for
several students with disabilities. And in so doing, it properly
stated and applied the law, and did not clearly err in the facts
it found or the inferences it drew. This is what happens when a
party tries well, but loses, a case that could have gone either
way. We therefore affirm the judgment.
-Dissenting Opinion Follows-
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TORRUELLA, Circuit Judge (Dissenting). Despite the
formidable standard of review, see Anderson v. City of Bessemer
City, 470 U.S. 564, 573 (1985) (stating that "a finding of
intentional discrimination is a finding of fact," to which we apply
the clear error review), where we have a "strong, unyielding belief
that a mistake has been made," it is our duty to reverse or remand,
Powell v. Alexander, 391 F.3d 1, 7 (1st Cir. 2004) (quoting Fed.
Refinance Co. v. Klock, 352 F.3d 16, 27 (1st Cir. 2003)). I am of
the firm belief that this is that rare case in which the district
court's finding that there was no retaliatory animus was clearly
erroneous. In light of the supported facts established by the
district court, the weight of the evidence merited a closer look
at the motivation of crucial actors in this story -- namely that
of the WES administration. Therefore, I respectfully dissent.
The district court found the "heart of the case" to be
the December 8, 2014 meeting, the site of the first identified
adverse employment action. Richard v. Regional Sch. Unit 57, 296
F. Supp. 3d 274, 278 (D. Me. 2017). The district court found that
"Superintendent Davis ran the District," and that Principal
Bertinet and Vice Principal Roberts, the school's administrators,
were simply "doing the perceived bidding of Superintendent Davis."
Id. at 304-05. Accordingly, the district court imputed
Superintendent Davis's motivation to all parties that took adverse
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employment actions against Richard. But, contradicting its own
findings, the district court also noted that the school
administration took adverse employment actions without the
Superintendent's direction. In particular, the district court
"[found] that Principal Bertinet and Vice Principal Roberts were
following Superintendent Davis'[s] 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." Id. at
304. But later recognized that "[t]he actions by WES
administration [went] beyond merely following the Superintendent's
wishes." Id.
The majority reads the latter district court statement
as limited to Principal Bertinet's and Vice Principal Roberts'
actions "against the children who were victims of T.K. and L.P.'s
aggressive conduct." Id. However, a careful reading of the
district court's order leads us to conclude that Richard was also
subject to such actions "beyond" the Superintendent's directions.
First, the district court clearly stated that "unsupported
positions" were taken against both Richard, and T.K. and L.P.'s
victims. Id. ("[T]he troubling aspect of their joining in
[Superintendent Davis's] 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." (emphasis added)). Given the context of this
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statement, the term "unsupported positions" refers to the mental
state that set the foundation for Principal Bertinet's and Vice
Principal Roberts' actions "beyond . . . the Superintendent's
wishes," as the district court described them immediately
following examples of their actions taken against T.K. and L.P.'s
victims. Id.3 Second, the district court explicitly included
Richard, along with one of T.K. and L.P.'s victims -- B.D., as one
of the actors in the uncertain events it recognized unfolded in
RSU 57. Id. at 304-05 ("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."). Thus, if the uncertain activity in RSU 57
was related to the WES administration's actions "beyond" the
Superintendent's direction against T.K. and L.P.'s victims, as the
3 To support its conclusion that the school administration took
no action beyond Superintendent Davis's wishes against Richard,
the majority points out the district court's omission of a specific
example, in this particular part of its order, of a hostile act by
Principal Bertinet and Vice Principal Roberts against Richard.
See Maj. Op. 11 (citing Richard, 296 F. Supp. 3d at 304). However,
as is discussed in detail below, Principal Bertinet responded in
a manner hostile towards Richard in the events surrounding two of
the three examples provided by the district court and alluded to
by the majority. Despite playing no role in suggesting that B.D.
was the culprit, Principal Bertinet sought to blame Richard for
B.D.'s trip to the principal's office following the incident
involving T.K. and a female classmate in which T.K. had hit the
girl, Richard, 296 F. Supp. 3d at 295-96. Furthermore, during the
tape recorded meeting, Principal Bertinet openly lied to B.D.'s
parents by stating that Richard had failed to report to her that
B.D. was being targeted, id. at 297-98, thereby implying to the
parents that Richard was not properly supervising her students.
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majority seems to concede, it follows that Richard was also subject
to such unsupported, and in her case adverse, action. Therefore,
the district court should have, but did not, consider the
Principal's and Vice Principal's motivations separate and apart
from the Superintendent's. This was clearly erroneous in light of
the district court's own findings.
We commonly look to certain indicators such as temporal
proximity, awareness of the protected conduct, comments by
decision makers, and differential treatment, as circumstantial
evidence to guide a causation analysis. See Mesnick v. Gen. Elec.
Co., 950 F.2d 816, 824 (1st Cir. 1991) ("[A] plaintiff should not
be required to produce 'smoking-gun' evidence before prevailing in
a discrimination suit. There are many veins of circumstantial
evidence that may be mined by a plaintiff to this end.");
Garayalde-Rijos v. Municipality of Carolina, 747 F.3d 15, 25 (1st
Cir. 2014)) ("'[T]emporal proximity' is merely one factor relevant
to causation . . . 'reinforced by other evidence.'" (quoting
Trainor v. HEI Hospitality, LLC, 699 F.3d 19, 28 (1st Cir. 2012)));
Alvarado v. Donahoe, 687 F.3d 453, 459 (1st Cir. 2012) (stating
that knowledge is required for a retaliatory motive). An analysis
of causation, however, is one where "[c]ontext matters."
Planadeball v. Wyndham Vacation Resorts, Inc., 793 F.3d 169, 178
(1st Cir. 2015) (quoting Burlington Northern & Santa Fe Ry. v.
White, 548 U.S. 53, 69 (2006)).
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The concrete evidence in this case shows that, even if
Superintendent Davis was not aware of Richard's advocacy at the
time of the December 8, 2014 meeting, Principal Bertinet and Vice
Principal Roberts both had knowledge of Richard's actions and took
adverse employment actions against this exemplary kindergarten
teacher. Superintendent Davis's hostile treatment at the December
8 meeting may have been the first, but was most certainly not the
only, adverse employment action taken. Yet, the district court's
causation analysis only considered the temporal proximity between
Richard's filing of the SAT requests for T.K. and L.P. and the
December 8 meeting.
The hostility by the school administrators continued
throughout the spring of 2015 without proven command or knowledge
by Superintendent Davis. In the district court's own words,
"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."
Richard, 296 F. Supp. 3d at 279. The hostility was most evident
in Principal Bertinet's misleading expressions to Richard's
detriment. For instance, when Richard went to Principal Bertinet's
office to inform her that T.K. had hit a female classmate,
Principal Bertinet "sought to deflect blame from T.K. to B.D."
Id. at 304. When B.D.'s parents inquired of the administration
about why B.D. was being pulled out of the classroom and whether
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B.D. was being targeted by the administration, Principal Bertinet
told them that it was "simply a friendly check-in" and attempted
to blame Richard for miscommunication, despite no evidence of such.
See id. at 295-96. In another incident, when Principal Bertinet
emailed B.D.'s parents to alert them that T.K. stepped on B.D.'s
hand, Bertinet insisted it was an accident despite Richard's report
to the contrary. Id. at 296. More overtly, at the tape-recorded
meeting with B.D.'s parents on April 3, 2015, Principal Bertinet
openly lied to B.D.'s parents that "[t]hat [was] the first time
that Ms. Richard ha[d] said that she felt that [B.D.] was being
targeted," despite the fact that Richard had reported this bullying
to the administration the previous day. See id. at 297-98. Three
days after this meeting, Principal Bertinet placed Richard on a
Corrective Action Plan. Id. at 304. These incidents occurred
five months after the December 8 meeting. The motivation of the
WES administration is therefore of crucial importance to the
ultimate causation analysis of retaliation in this case.
Despite these and other independent actions by the
school's administrators, the district court inexplicably and
summarily ended its analysis into the motivation of the WES
administration by stating "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." Id. at 304-05. The
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district court did not consider the temporal proximity of these
school administrator's adverse employment actions to Richard's
advocacy, but instead only focused on the temporal proximity of
the December 8 meeting. While the administration's actions may
only be circumstantial evidence of a retaliatory animus, the
temporal proximity between Richard's advocacy and those actions
can and should have been used in the district court's causation
analysis. Sánchez-Rodríguez 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 . . . ."); see,
e.g., DeCaire v. Mukasey, 530 F.3d 1, 21 (1st Cir. 2008) (using
temporal proximity to find factual error in court's ultimate
conclusion regarding causation).
Further, in its causation analysis, the district court
erroneously considered only whether Superintendent Davis's
pretextual explanation for his behavior provided evidence of a
retaliatory motive, but failed to consider the pretextual
explanation that the school administration put forth. See Zapata-
Matos v. Reckitt & Colman, Inc., 277 F.3d 40, 45 (1st Cir. 2002)
("[D]isbelief of the reason may, along with the prima facie case,
on appropriate facts, permit the trier of fact to conclude that
the employer had discriminated."). Although the district court
did mention RSU 57's proffered motivation at the very initial prima
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facie stage, it wholly failed to review the administration's
justification for their actions when considering whether Richard
met her ultimate burden of persuasion. Compare Richard, 296 F.
Supp. 3d at 300-01 (explaining that the administration articulated
a nondiscriminatory reason for its actions), with id. at 301-02
(looking only to Superintendent Davis's motivations in its
causation analysis). As illustrated above, Principal Bertinet and
Vice Principal Roberts both participated in and influenced the
adverse employment actions, and thus their motivation -- and
whether their proffered nondiscriminatory justification was
pretextual -- was also relevant and should have been analyzed by
the district court. See, e.g., Webber v. Int'l Paper Co., 417
F.3d 229, 236 (1st Cir. 2005) (analyzing animus of each participant
that influenced an adverse employment action); Cariglia v. Hertz
Equip. Rental Corp., 363 F.3d 77, 85-88 (1st Cir. 2004) (stating
that the district court should have reviewed the animus of an
employee that may have manipulated the information provided to the
ultimate decisionmakers). The district court's failure to do so
was clearly erroneous. An analysis of RSU 57's proffered reasons
for its actions may have supported Richard's argument that the
adverse actions were motivated by her advocacy. See Kosereis v.
Rhode Island, 331 F.3d 207, 214 (1st Cir. 2003) ("Evidence that
the employer's stated reasons for its actions are pretextual can
be sufficient to show improper motive.").
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When the record is reviewed in its entirety, the
retaliatory inference is apparent. The more incidents Richard
reported to the school administration, the more the administration
intensified the pressure that it exerted on Richard instead of
providing the requested aid for the students for whom Richard was
advocating. See DeCaire, 530 F.3d at 21 (lack of hostility prior
to protected conduct supports inference of retaliatory animus).
The district court's failure to consider the school
administrator's motivations to determine whether Richard had
proven her retaliation claims was clearly an error.
Kindergarten teachers are the first in line for the
identification and proper treatment of children with disabilities
within our school systems. The education system, parents, and
society as a whole rely on those kindergarten teachers to advocate
for children's needs and to create a safe environment in the
classroom. Teachers, however, cannot be expected to shoulder this
weight alone, but need the support of our school systems to help
those students develop essential skills that they will employ for
the rest of their lives. Richard was an exemplary teacher, and in
some instances "the only positive force" in these children's lives.
Richard, 296 F. Supp. 3d at 296. RSU 57 not only unjustifiably
disrupted her efforts to provide support for the children, but
waged a campaign of adverse employment actions in retaliation. I
am therefore left with a "definite and firm conviction that a
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mistake has been committed." United States v. United States Gypsum
Co., 333 U.S. 364, 395 (1948). I respectfully dissent.
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