Employment Law Daily Retaliatory acts and pretext not enough to show teacher was disciplined due to her advocacy for disabled students
Thursday, August 23, 2018

Retaliatory acts and pretext not enough to show teacher was disciplined due to her advocacy for disabled students

By Joy P. Waltemath, J.D.

A deeply divided First Circuit panel upheld the judgment of a district court, following a five-day bench trial, that although a kindergarten teacher had established a prima facie case of retaliatory treatment and shown that the school’s rationale for putting her on a performance improvement plan and transferring her was pretextual, she had not proven that the actions taken against her by the superintendent, the principal, and vice principal were a result of her advocacy on behalf of students with disabilities in her classroom. Dissenting, Judge Torruella would have held this to be “that rare case in which the district court’s finding that there was no retaliatory animus was clearly erroneous” based on questions concerning the motivations of not just the superintendent, but other “crucial actors”—the principal and vice principal (Richard v. Regional School Unit 57, August 21, 2018, Kayatta, W., Jr.).

Behavioral issues in classroom. What happens when a kindergarten teacher with an “exemplary” seven-year record confronts apparently intractable classroom issues involving a handful of students—three who previously had been identified as requiring special education and two more whom she identified as in need of intervention because of their bullying and sometimes violent behavior towards other students? Although the teacher notified the administration, worked with a behavioral specialist, and referred the two students to a student assessment team, the matter came to a head when a parent contacted the superintendent to complain (although she was complimentary to the teacher).

Teacher’s story holds up. Crediting the teacher’s evidence, the district court found the superintendent responded by conducting a meeting in which he was “accusatory, derogatory, and unprofessional”; called the teacher “pathetic”; accused her of breaching student confidentiality with parents; claimed she “was the problem” and not the students; and said the school had “wasted ten years on her.” He also denied that the incidents she had observed in her classroom had occurred. A memo was placed in her file outlining expectations for her to bring her classroom under control, but behavioral issues continued, and the teacher continually sought assistance, complaining that the administration wasn’t acknowledging one student was bullying another. At some point, the superintendent lamented “what is it that I need to do to have Charlene Richard resign?”

Not because of her advocacy. Eventually she was transferred and placed on a performance improvement plan, after which she sued, claiming retaliation under 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 the teacher’s version of events, but it nevertheless found that she had not proven that the adverse actions she suffered came as a result of her advocacy on behalf of the disabled. On appeal, the First Circuit affirmed.

At trial. At the parties’ joint request, the district court applied the McDonnell Douglas analysis at trial (which the appeals court found unnecessary), concluding that the teacher had made out a prima facie case and that the school had offered a legitimate reason for its actions (the superintendent’s frustration with the teacher’s and other professionals’ inability to manage the kindergarten classroom). The court also concluded that the teacher showed that this reason was pretextual, given that the superintendent had taken no action against any other education professional at the school as a result of the issues in this teacher’s classroom. But the district court also found itself unconvinced that the teacher’s advocacy for her students with disabilities was what prompted the adverse actions against her, noting that the superintendent was likely unaware of it at the time of the meeting following the parent’s complaint, and that referring students for special education services was unlikely to cause the superintendent concern or raise budgetary pressures. It found no other sources of bias that could have influenced the superintendent, and in addition, that the principal and vice principal were hostile to the teacher only in response to the superintendent’s hostility, and not based on any animus connected with her advocacy for students with disabilities.

Legal effect of finding pretext. On appeal, the teacher first argued that the district court improperly required her to present evidence of causation beyond that which supported her prima facie case, suggesting that once the district court found pretext, it had to find a violation. But the appeals court said she had conflated two concepts: “what the evidence permits a factfinder to do, and what the evidence compels a factfinder to do.” Rejecting an employer’s proffered reason only permits a factfinder to infer retaliation; her pretext evidence did not convince the court that the school’s true reason for acting was to retaliate against her.

No failure to consider her evidence. As to whether the district court “failed to consider” certain evidence, proposed inferences, or arguments raised by the teacher, the appeals court was unpersuaded. Rule 52 amendment notes point out that a “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.” The appeals court rejected “in bulk” the teacher’s arguments complaining that the trial court’s 67-page opinion did not mention or “failed to address” certain facts and assertions she had advanced.

No proven retaliatory motive. The teacher also argued that the lower court erred when it would not infer that resource considerations involved in educating special needs students motivated the school’s actions, or when it did not impute the motivations of each individual (superintendent, principal, vice principal) to the school to find a retaliatory motive. But in the appeals court’s view, the district court adequately addressed both arguments. Aside from finding no specific resource constraints here, the lower court also found the principal and vice principal had been “collaborative and supporting” in dealing with the teacher until the superintendent’s angry meeting, after which they began “behaving adversely” towards her—following their boss’s lead and doing his bidding. The appeals court also credited the district court that the principal and vice principal “not only took actions directed at” the teacher, but also at the child victims in the classroom, and did so to do the superintendent’s bidding.

“Could have gone either way.” In the First Circuit’s view, the 67-page trial court opinion contained “more than sufficient findings and reasoning” to explain, in detail, why it determined the teacher had not proven the school had acted with animus prompted by the teacher’s advocacy for several students with disabilities. “This is what happens when a party tries well, but loses, a case that could have gone either way,” concluded the court, affirming the judgment.

Dissent. Judge Torruella, dissenting, was “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.” It was his opinion that the district court imputed the superintendent’s motivation to all parties that took adverse employment actions against the teacher. Citing numerous instances of hostility by the school administrators for months after the superintendent’s meeting, which took place “without proven command or knowledge” by the superintendent, the dissenting judge took issue with the district court “inexplicably and summarily end[ing] its analysis into the motivation” of the administrators by saying “something was going on … but the Court is not sure what.” It did not consider the temporal proximity of these school administrators’ adverse employment actions to the teacher’s advocacy, but instead only focused on the temporal proximity of the superintendent’s meeting. Yet those administrators both participated in and influenced the adverse employment actions.

Said the dissenting judge: “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. … 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. … RSU 57 not only unjustifiably disrupted her efforts to provide support for the children, but waged a campaign of adverse employment actions in retaliation.”

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