UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 95-1543
BARBARA WYTRWAL,
Plaintiff - Appellant,
v.
SACO SCHOOL BOARD, ET AL.,
Defendants - Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Gene Carter, U.S. District Judge]
Before
Torruella, Chief Judge,
Lynch, Circuit Judge,
and Stearns,* District Judge.
Carl E. Kandutsch, with whom William C. Knowles, James E.
McCormack and Verrill & Dana were on brief for appellant.
Jerrol A. Crouter, with whom Eric R. Herlan and Drummond
Woodsum & MacMahon was on brief for appellees.
November 21, 1995
* Of the District of Massachusetts, sitting by designation.
TORRUELLA, Chief Judge. Plaintiff-appellant Barbara
TORRUELLA, Chief Judge.
Wytrwal ("Appellant" or "Wytrwal"), a former special education
teacher at Saco Middle School in Saco, Maine, sued defendant-
appellees, the then-Superintendent of Schools for Saco School
District Dr. Cynthia Mowles, the Saco School Board and the City
of Saco (collectively, the "Appellees"), for retaliatory
nonrenewal of her employment contract under (1) the Civil Rights
Act, 42 U.S.C. 1983; (2) the Maine Whistleblowers' Protection
Act, 26 M.R.S.A. 833(1); and (3) a common law theory of
intentional infliction of emotional distress.1 Following a
bench trial, the district court denied all of appellant's claims.
Appellant seeks review of that decision here. We affirm the
decision of the district court.
I. BACKGROUND
I. BACKGROUND
We begin with the facts as supportably found by the
district court after a bench trial. See Wytrwal v. Mowles, No.
93-360-P-C, slip op. at 2-32 (D. Me. May 5, 1995).
Wytrwal began to teach behaviorally impaired students
at Saco Middle School in the Fall of 1990. Wytrwal was in
probationary status for her first two years on the job, like all
1 Because plaintiff-appellant's statement of issues includes
only these three claims, she has abandoned her former fourth
claim under the common law theory of wrongful discharge, and it
is therefore waived. Washington Legal Found. v. Massachusetts
Bar Found., 993 F.2d 962, 970 n.4 (1st Cir. 1993) (ruling that
claims not included in statement of issues have, on appeal, been
abandoned and are waived); Rivera-G mez v. de Castro, 843 F.2d
631, 635 (1st Cir. 1988) ("A litigant has an obligation 'to spell
out its arguments squarely and distinctly' . . . or else forever
hold its peace.").
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other new teachers at the school. At the end of the second year,
teachers are considered for continuing contract status -- similar
to being awarded tenure. The decision on Wytrwal's status rested
with Dr. Cynthia Mowles ("Mowles"), the then-Superintendent of
Schools for the Saco School District, who decided not to grant
continuing contract status. Mowles testified that she made her
decision based on comments from Saco Middle School's principal
Joseph Voci ("Voci") and assistant principal Gregory T. Goodness
("Goodness") regarding Wytrwal's trouble managing her students,
her difficulties working with supervisors and other co-workers,
and her time spent out of the classroom. The district court
viewed evidence on Wytrwal's mental illness, unknown to appellees
before pretrial discovery, as corroborative of the claim that she
had been absent from the classroom to a considerable degree. In
contrast, Wytrwal contends that she was fired for stating at a
school board meeting that the school's placement of special
education students violated state and federal regulations.
Wytrwal has alleged that these violations exacerbated her
already-difficult job.
By all accounts, Wytrwal's first year at Saco Middle
School was quite successful. During her second year, however,
she began to have some problems. Her class grew much larger that
second year, reaching a peak of eighteen, as compared to six the
year before. Several of the more problematic students during her
second year were considered by school officials extremely
dangerous, suicidal, and violent to themselves and others. In
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addition, two of her second year students were on court-ordered
probation and, as a condition of their probation, they were not
supposed to have contact with each other. Finally, on February
11, 1992, Wytrwal spoke at an executive session of the Saco
School Board at the invitation of Elizabeth DeSimone
("DeSimone"), a School Board member alarmed by a particular
domestic disturbance involving one of Wytrwal's students.
Present at the meeting were Wytrwal, five school
administrators, including Mowles, Voci, Goodness and Special
Education Director David Stickney ("Stickney"), and five school
board members, including DeSimone. All agree that Wytrwal spoke
at the meeting and that it was unusual for a teacher to address a
School Board meeting. Wytrwal testified that, at the meeting,
she focused on the impact of not having programs designed
specifically to meet the needs of emotionally and behaviorally
impaired students. Furthermore, according to Wytrwal, she
specifically told the board that Stickney had prevented the
placement of some students in more appropriate, and more
expensive, programs outside of the school district. She added
that Stickney had said that, if necessary, he would overrule the
consensus student placement judgments of teams of teachers,
social workers, and other professionals, which would be an
illegal act on his part.
Defendants-appellees uniformly testified that Wytrwal's
presentation at the school board meeting did not include
allegations that Saco Middle School was violating special
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education laws by failing to appropriately place students, but
the district court rejected this testimony, concluding that "the
testimony at trial of the administrators and school board members
was fabricated in an attempt to cover up what really occurred at
the board meeting." In particular, the district court found
DeSimone's claimed "complete lapse in memory" at trial on the
subject of Wytrwal's presentation to be "highly suspect," given
that Wytrwal attended the meeting at DeSimone's invitation. Not
surprisingly, the district court inferred that Wytrwal told the
school board that Saco Middle School was violating special
education laws by failing to appropriately place students, and
that Wytrwal's presentation to the board was a motivating factor
in the decision not to renew her contract.
However, the district court also found that there was
evidence that Wytrwal had difficulties with Stickney that
preceded the presentation before the school board. Wytrwal
herself testified that she argued vehemently with Stickney in
private regarding the allegations of violations of law. She also
testified that Stickney attempted to claim credit for a special
education program she had designed. Furthermore, Stickney
testified that he was put off by a memo from Wytrwal criticizing
the way he had introduced a social worker to Wytrwal and her
students, even though she had worked for the school district for
less than eight weeks at the time.
Stickney also testified that, two days after the school
board meeting, Wytrwal angrily stormed out of a meeting with him,
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regular school teachers, and other professionals, as a result of
a disagreement regarding a student's educational plan. Stickney
testified that he decided at that point not to recommend Wytrwal
for a continuing contract,2 and that he then discussed with Voci
his concerns about Wytrwal's behavior. On February 27, 1992,
Stickney sent a letter ("the February 27 letter") to Wytrwal
outlining his criticisms of her. Wytrwal took the letter to
Jeffrey Wilder ("Wilder"), a union representative, in order to
get it removed from her personnel file. Eventually, a meeting
was convened with Mowles, Wytrwal, Stickney and Wilder, at the
end of which Mowles instructed Stickney to keep the February 27
letter out of Wytrwal's file and to rewrite the letter, giving a
draft to Wytrwal and Wilder. Stickney refused to redraft the
February 27 letter.
On April 9, 1992, Voci gave Wytrwal an evaluation he
had written and told her that he had recommended to Mowles that
her contract not be renewed. Wytrwal testified that she was
shocked to learn she would not be renewed. A few days later,
Mowles wrote to Wytrwal informing her that she would not be
continued as a teacher in special education at the Saco Middle
School.
Wytrwal subsequently brought this action alleging that
her contract was not renewed in retaliation for her
constitutionally-protected speech regarding the school's
2 The district court noted that this statement contradicted
other testimony by Stickney that he had made up his mind in Fall
1991 that Wytrwal should not be renewed.
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noncompliance with state and federal special education
regulations. Wytrwal here seeks review of the district court's
denial of her claims under the Civil Rights Act, 42 U.S.C.
1983, the Maine Whistleblowers' Protection Act, 26 M.R.S.A.
833(1), and under a Maine common law theory of intentional
infliction of emotional distress.
II. STANDARDS OF REVIEW
II. STANDARDS OF REVIEW
With respect to Wytrwal's 1983 claim, the standard of
review must be interpreted in conjunction with the substantive
legal standard involved, enunciated in Mt. Healthy City Board of
Ed. v. Doyle, 429 U.S. 274, 285 (1977). See also O'Connor v.
Steeves, 994 F.2d 905, 913 (1st Cir.), cert. denied by Town of
Nahant, Mass. v. O'Connor, U.S. , 114 S. Ct. 634, 126
L.Ed. 593 (1993). Findings on "what is protected free speech"
are subject to de novo review. Duffy v. Sarault, 892 F.2d 139,
145 (1st Cir. 1989); see also O'Connor, 994 F.2d at 912-13.
However, findings on "whether that speech substantially affected
a defendant's employment decision and whether the defendant has
met his preponderance burden that the decision would be made
anyway" are subject to review under the clearly erroneous
standard. Duffy, 892 F.2d at 139; see also O'Connor, 994 F.2d at
913 (concluding that clear error review is appropriate where
judgment is entered after a trial on the merits). Thus, the
clearly erroneous standard applies to the 1983 finding that
Wytrwal challenges, namely, whether appellees met their
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preponderance burden under Mt. Healthy. Duffy, 892 F.2d at 145-
46.
With respect to the state law claims of retaliatory
nonrenewal in violation of the Maine Whistleblowers' Protection
Act and of intentional infliction of emotional distress, after a
bench trial, we will not set aside the trial court's findings of
fact unless demonstrated to be clearly erroneous. Williams v.
Poulos, 11 F.3d 271, 277 (1st Cir. 1993), cited in N.H. Ball
Bearings v. Aetna Cas. and Sur. Co., 43 F.3d 749, 752 (1st Cir.
1995). Mistakes of state law are subject to de novo review.
Crellin Technologies, Inc. v. Equipmentlease Corp., 18 F.3d 1, 7
(1st Cir. 1994); N.H. Ball Bearings, 43 F.3d at 752.
III. DISCUSSION
III. DISCUSSION
A. 42 U.S.C. 1983
A. 42 U.S.C. 1983
Appellant alleges that Saco Middle School chose not to
renew her contract because of her school board presentation, and
that this nonrenewal by a state actor because of her exercise of
her constitutional rights entitles her to redress. 42 U.S.C.
1983.3 We uphold the district court's conclusions,
3 Which states in relevant part that:
Every person who, under color of any
statute, ordinance, regulation, custom,
or usage, of any State or Territory or
the District of Columbia, subjects, or
causes to be subjected, any citizen of
the United States or other person within
the jurisdiction thereof to the
deprivation of any rights, privileges, or
immunities secured by the Constitution
and laws, shall be liable to the party
injured in an action at law, suit in
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unchallenged by appellees here, that appellant spoke on a matter
of public concern and that her interest in that expression
outweighed countervailing governmental interests in promoting the
efficient performance of the service provided by its employees.
See Connick v. Myers, 461 U.S. 138, 146, 150 (1983). However,
the district court also concluded that while appellant's speech
was a "motivating" factor in the employment decision, appellees
were not liable, since they showed by a preponderance of the
evidence that they would have made the same decision in the
absence of the protected conduct. See Duffy, 892 F.2d at 145;
Mt. Healthy, 429 U.S. at 285. As a result, the district court
denied appellant's 1983 claims. Appellant challenges the
district court's finding that appellees met this burden.
The district court applied the correct legal standard,
that of Mt. Healthy, which directs that the plaintiff-employee
must first show that the protected expression was a substantial
or motivating factor in the adverse employment decision; if the
plaintiff meets this test, the defendant governmental entity must
be afforded an opportunity to show "by a preponderance of the
evidence that [it] would have reached the same decision . . .
even in the absence of the protected conduct." Mt. Healthy, 429
U.S. at 285 (1977).
equity, or other proper proceeding for
redress. . . .
42 U.S.C. 1983.
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Under review for clear error, we uphold the district
court's finding that appellant's protected conduct was a
"motivating" factor behind the Board's decision not to rehire
her. The district court's finding had ample evidentiary support,
given Wytrwal's overall testimony, DeSimone's questionable
testimony of a complete lapse in memory regarding Wytrwal's
presentation, Stickney's own testimony that he was angry when he
left the meeting, and the fact that Stickney put his criticisms
of Wytrwal into writing for the first time only 16 days after the
meeting.
However, we also uphold as not clearly erroneous the
district court's factual finding that appellees established, by a
preponderance of the evidence, that they would not have renewed
appellant's contract even in the absence of the protected
conduct. The district court found sufficient support for this
ruling in the evidence that Wytrwal had an untenable working
relationship with Stickney, the special education director; in
testimony by Mowles, Goodness and Voci that they had ongoing
concerns throughout the second year with Wytrwal's performance,
including difficulties working with other specialists involved in
her students' education; and in evidence that Wytrwal spent a lot
of time out of the classroom, corroborated by other evidence of
her mental illness.
Appellant contends that the district court erred in its
finding that appellees carried their burden of persuasion,
particularly in light of the district court's conclusion that
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appellees fabricated their testimony. However, that part of
appellees' testimony that the district court rejected concerned
appellees' version of the content of appellant's presentation at
the school board meeting. The district court found in favor of
appellant that her speech was both protected conduct and a
substantial or motivating factor in her termination. However,
the district court credited appellees' testimony regarding
Wytrwal's job performance. Such a choice is within the
discretion of the factfinder, NLRB v. Izzi, 395 F.2d 241, 243
(1st Cir. 1968) (factfinder may credit the rest of a witness'
testimony even if part is not believable). Ultimately, such
credibility determinations are the unique role of the factfinder.
Flanders & Medeiros, Inc. v. Bogosian, 65 F.3d 198, , (1st
Cir. 1995) (assessing credibility is a task for the factfinder);
Connell v. Bank of Boston, 924 F.2d 1169, 1178 (1st Cir. 1991)
("[W]e [the Court of Appeals] are not to weigh the evidence or
make credibility judgments."). We do not find clear error.
Finally, we must reject appellant's contention that
appellees' reasons for terminating her must have been independent
from her protected conduct in the sense that they must be
unrelated by subject matter. In Mt. Healthy, the Supreme Court
explicitly rejected a proposed test that would have required that
the alternative grounds for denial of a teacher's tenure be
"independent of any First Amendment rights or exercise thereof"
as overprotective. Mt. Healthy, 429 U.S. at 285 (stating that
the proper test in a "mixed motive" context must "protect[]
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against the invasion of constitutional rights without commanding
undesirable consequences not necessary to the assurance of those
rights"; including undeserved grant of tenure as such an
undesirable consequence). It is true that Mt. Healthy does state
that school boards should be allowed to prove to a trier of fact
that they would not have rehired teachers for reasons "quite
apart from" their protected conduct. Id. at 286. But this
language in the opinion cannot mean that if there are other valid
reasons, such as a poor relationship with superiors and
coworkers, these reasons are inadmissible if related to the
protected conduct, since Mt. Healthy also explicitly criticizes
tests of causation that could place employees in a better
position as a result of the exercise of constitutionally
protected conduct than they otherwise would have occupied had
they done nothing. Id. at 285. The interpretation suggested by
appellant would have the unfortunate effect of allowing
plaintiff-employees to immunize themselves against their prior
problems with defendant supervisors by their later protected
conduct. We decline to adopt such a rule.
B. Maine Whistleblowers' Protection Act
B. Maine Whistleblowers' Protection Act
Appellant asks that this Court overturn the rejection
of her claim under the Maine Whistleblowers' Protection Act on
the grounds that the district court erred in finding that
appellees had proven by a preponderance of the evidence that her
contract would not have been renewed absent her protected
conduct. In light of the absence of Maine case law regarding the
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content of the burden appellees must bear under the statute,4 we
agree with the district court's decision to apply the federal
standards arising under Title VII case law as other courts have
in similar situations. See LaFond v. General Physics Services
Corp., 50 F.3d 165, 172 (2d Cir. 1995); Rosen v. Transx Ltd., 816
F. Supp. 1364, 1367-68 (D. Minn. 1993); Melchi v. Burns
International Security Services, Inc., 597 F. Supp. 575, 581
(E.D. Mich. 1984); Kennedy v. Guilford Technical Community
College, 448 S.E.2d 280, 281-82 (N.C. App. 1994). Appellant does
not, in any case, contest the district court's decision to apply
federal standards.
McDonnell Douglas v. Green, 411 U.S. 792, 802-05 (1973)
adopts a three stage inquiry. Id. First, appellant must
establish a prima facie case. Id. One Maine case defines this
burden in particular under the Maine Whistleblowers' Protection
Act. See Bard v. Bath Iron Works Corp., 590 A.2d 152, 154 (Me.
1991) (defining prima facie case, but finding that former
employee did not satisfy his burden thereunder, and therefore not
4 The Maine Whistleblowers' Protection Act provides that an
employer may not discriminate against any employee, among other
reasons, because:
The employee, acting in good faith . . .
reports orally or in writing to the
employer or a public body what the
employee has cause to believe is a
violation of a law or rule adopted under
the laws of this State, a political
subdivision of this State or the United
States.
26 M.R.S.A. 833(1)(A).
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considering employer's burdens). To establish a prima facie case
of violation of the Maine Whistleblowers' Protection Act,
appellant must show that (1) she engaged in activity protected by
the statute, (2) she was the subject of adverse employment
action, and (3) there was a causal link between the protected
activity and the adverse employment action. Id. In Bard, the
Supreme Judicial Court of Maine cited to a federal case, Moon v.
Transport Drivers, Inc., 836 F.2d 226, 229 (6th Cir. 1987), which
in turn relied on discrimination law principles. Under such
principles, a prima facie case gives rise to a rebuttable
presumption that the employer unlawfully discriminated against
the Title VII plaintiff. Smith v. Stratus Computer, Inc., 40
F.3d 11, 15 (1st Cir. 1994), cert. denied, U.S. , 115 S.
Ct. 1958, 131 L.Ed.2d 850 (1995). Similarly, therefore, a prima
facie case of violation of the Maine Act gives rise to a
rebuttable presumption that the employer retaliated against the
employee for reporting illegal activities. See McDonnell Douglas
v. Green, 411 U.S. 792, 802-05 (1973).
Subsequently, at the second stage of the McDonnell
Douglas inquiry, the employer must produce sufficient competent
evidence, taken as true, to permit a rational factfinder to
conclude that there was a nondiscriminatory reason for the
challenged employment action, thereby displacing the presumption
of intentional discrimination generated by the prima facie case.
Byrd, 61 F.3d 1026, 1031; Woodman v. Haemonetics Corp., 51 F.3d
1087, 1091 (1st Cir. 1995).
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Then, at the third and final stage in the McDonnell
Douglas analysis, the employee, who has the ultimate burden of
persuasion throughout, must present sufficient admissible
evidence, if believed, to prove by a preponderance of the
evidence each element in a prima facie case and that the
employer's justification for the challenged employment action was
merely a pretext for impermissible . . . discrimination." Byrd,
61 F.3d at 1026; Woodman, 51 F.3d at 1092.
The district court found that appellant made the
requisite prima facie case, and that the employer carried its
second stage burden of production. Ultimately, the district
court ruled that defendant-appellees presented persuasive
evidence that appellant was discharged for permissible reasons,
and so appellant could not prove pretext by a preponderance of
the evidence. Appellant's sole argument on appeal is that the
district court erred in finding that defendant-appellees had
proved by a preponderance of the evidence her contract would not
have been renewed absent her protected conduct. Under review for
clear error, with respect to appellant's 1983 claim, we have
already upheld the district court's finding under Mt. Healthy
that, by a preponderance of the evidence, defendant-appellees
would have made the same decision in the absence of her protected
conduct. In accord with that finding under the same facts, the
same standard of review and the same evidentiary standard, we
reject appellant's argument under the McDonnell-Douglas framework
for the same reasons as under the Mt. Healthy analysis.
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C. Intentional Infliction of Emotional Distress
C. Intentional Infliction of Emotional Distress
To prevail on a claim for intentional infliction of
emotion distress, appellant must show that (1) appellees acted
intentionally or recklessly or were substantially certain that
severe emotional distress would result from their conduct; (2)
appellees' conduct was so extreme and outrageous as to exceed all
possible bounds of decency and must be regarded as atrocious and
utterly intolerable in a civilized community; (3) appellees'
conduct caused appellant emotional distress; and (4) the
emotional distress suffered by appellant was so severe that no
reasonable person could be expected to endure it. Gray v. State,
624 A.2d 479, 484 (Me. 1993).
The district court denied this claim on the grounds
that Mowles' reasoned process of decision making could not be
characterized as the requisite extreme and outrageous conduct.
Without citation to Maine authority, appellant argues that the
district court erred by assuming that Mowles' decision not to
renew Wytrwal's contract was the correct factual predicate for
the intentional infliction of emotional distress claim. Instead,
appellant contends, as a matter of law, that the district court's
finding that her protected free speech was a motivating factor
under Mt. Healthy in the employment decision in and of itself
compels a finding of extreme and outrageous conduct, and that any
argument that appellees would have made the same decision for
permissible reasons is irrelevant. We reject this argument.
Maine case law defines "extreme" and "outrageous" conduct as
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behavior that exceeds "all possible bounds of decency" and which
must be regarded as "atrocious, and utterly intolerable in a
civilized community." Gerber v. Peters, 584 A.2d 605, 608 (Me.
1990), cited in Adams, 624 A.2d at 484. Given Maine's
endorsement of a standard rooted in community standards of
conduct, and Mt. Healthy's logically consistent balancing of
individual constitutional rights against society's interest in
the efficient delivery of state services, we cannot agree with
appellant that we must ignore appellees' arguments under the Mt.
Healthy burden shifting analysis in weighing the outrageousness
of appellees' conduct. Thus, with respect to appellant's
argument that conduct antagonistic to her exercise of her
constitutional rights is intolerable in a civilized community, we
conclude that the balance of societal interests, including the
harm of undeserved tenure for teachers, militates against such a
finding. Having found that appellant cannot carry her burden
under the second prong of the Maine tort of intentional
infliction of emotional distress, we need not reach the other
three prongs.
IV. CONCLUSION
IV. CONCLUSION
For the foregoing reasons, the judgment of the district
court is affirmed. Costs to appellees.
affirmed
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