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Richard v. Regional School Unit 57

United States District Court, D. Maine

November 7, 2017

CHARLENE RICHARD, Plaintiff,
v.
REGIONAL SCHOOL UNIT 57, Defendant.

          ORDER

          JOHN A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE.

         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.

         I. PROCEDURAL BACKGROUND

         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).

         II. 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. Palmquist v. 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 this case.

         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 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]

         III. 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. 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 teach.”

         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.

         IV. FINDINGS OF FACT

         A. 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 reviews. 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 performance evaluations. 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 school year.

         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. To the contrary, Ms. Richard received uniformly excellent assessments. Id. 3-12. For 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 your permission.

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.

         B. 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. 6:9-23.

         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, speech-language 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. Id. 2:19-22 (“[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 staff members.

         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]

         C. 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 with.

         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. 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.

         D. 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 fast-tracked 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 questions. Id.

         After about three weeks in Ms. Richard's class, RSU 57 transferred K.M. to another classroom. This was not done at Ms. Richard's request. Ms. Bertinet 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.

         E. 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 vice-principal, Ms. Richard was encouraged.

         F. 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 twenty-two. 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.

         1. G.T.

         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 period.

Id.

         2. 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 October, 2014.

         3. 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.

         4. ...


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