United States District Court, D. Maine
A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE.
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
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).
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.
SUMMARY OF LEGAL STANDARDS
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).
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.
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)).
THE HEART OF THE CASE: THE DECEMBER 8, 2014 MEETING
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.
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.”
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.”
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.
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.
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
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
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.
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.
FINDINGS OF FACT
Charlene Richard: 2005 through June 2014
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
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
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.
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.
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.
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
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.
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.
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.
RSU 57 and Special Education: An Overview
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.
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.
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
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”).
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.
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.
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.
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.
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
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.
Special Education Services and Charlene Richard
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.
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.
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
Charlene Richard, an Autistic Student, and K.M.
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.
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.
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.
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.
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.
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.
Administrative Changes: 2013-14 to 2014-15
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
Events Before and at the Beginning of the 2014-15 School
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.
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.
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.
The Missing IEPs
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.
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.
Rutharian Gregoire: Educational Technician II
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.