D. WARREN JUSTICE
action involves a complaint by plaintiff Ann Marie Barter
which alleges that she was subjected to adverse action by
defendant Regional School Unit 5 in retaliation for
complaints that she had been subjected to discrimination in
violation of the Maine Human Rights Act.
jury-waived trial was held in the above-case on January 18,
19, 22, and 23. The parties thereafter submitted proposed
findings of fact and post-trial briefs.
has the burden of proof by a preponderance of the evidence,
and the factual findings in this order are found to be more
likely true than not.
court makes the following findings of fact and conclusions of
Marie Barter obtained a bachelor's degree in Illinois in
1986, taught high school French for three years in Illinois,
and thereafter moved to Maine. She obtained an M.A. degree in
mental health counselling from the University of Southern
Maine in 1994 or 1995.
1992 through 1996 she worked at Windham Adult Education and
earned several significant awards as an Adult Education
2009 she began working as a staff development specialist at
the Long Creek Youth Development Center and then served as
Assistant Principal at Long Creek's combined middle and
high school during the 2010-11 and 2011-12 school years.
became Assistant Principal at Freeport High School, part of
RSU 5, in October 2012. At the time she was hired RSU 5 was
just beginning the process of implementing the system of
Proficiency-Based Education (PBE) required by recently
enacted state legislation.
During the 2012-13 and 2013-14 school years Barter worked
with Bob Strong, who was the Freeport High Principal. Strong
planned to retire at the end of the 2013-14 school year and
was not interested in developing a PBE curriculum, so Barter
took the lead on the PBE curriculum during the 2012-13 and
2013-14 school years.
many cases assistant principals are supervised and evaluated
by the school principals. However, the Superintendent of RSU
5 at the time Barter was hired, Shannon Welsh, had chosen to
evaluate all of the administrative-level personnel at RSU 5
schools, including principals, assistant principals, and
other administrators. Accordingly, Barter was evaluated by
Superintendent Welsh during the 2012-13 and 2013-14 school
After the 2012-13 school year Barter received a formal
evaluation from Superintendent Welsh. That evaluation was
positive. In addition to evaluations, employees
received performance growth plans (essentially a list of
areas for improvement), and Barter's performance growth
plan for 2013-14 (Ex. 2) was to focus on better strategies
for conversations with staff and for time management.
Issues with Barter's performance arose during the 2013-14
school year. Superintendent Welsh became aware that teachers
had raised concerns that Barter was not supporting their
classroom decisions with respect to student discipline, and
some had also raised concerns about their interactions with
her. This in fact rose to the level where some teachers took
the unusual step of providing a survey to Superintendent
Welsh that questioned Barter's trustworthiness.
practice in RSU 5 was that school administrators were
ordinarily given one-year contracts during the first two
years of their employment and two-year contracts after that.
Barter had received a second one-year contract for the
2013-14 school year and was given a two-year contract in
March 2014. In line with Superintendent Welsh's practice,
that contract indicated that Barter would be supervised and
evaluated by the Superintendent.
However, in light of the concerns that had been raised,
Superintendent Welsh placed Barter on a performance growth
plan ending in January 2015 (Exhibit 1, dated May 23, 2014).
This was designed to address the concerns about Barter's
transparency in communicating with staff and to increase
trust. Barter was not placed on a formal action plan, but
Welsh described Barter's need for improvement as
"essentially an action plan."
Welsh, along with Bob Strong, retired at the end of the
2013-14 school year. While looking for a permanent
superintendent, RSU 5 hired two retired superintendents,
William Michaud and Michael LaFortune, as part-time
superintendents for the 2014-15 school year. Both had lengthy
careers in education and had previously served as
superintendents in multiple school districts.
briefing Michaud and LaFortune, Shannon Welsh specifically
brought the concerns that had been raised about Barter to
their attention and told them that a decision about Barter
might need to be made around the end of 2014.
the late spring of 2014, before Superintendent Welsh retired,
Freeport High School had begun the process of hiring a new
principal to replace Bob Strong. Although Barter testified
that Superintendent Welsh repeatedly encouraged her to apply
for the principal's position, Barter's testimony was
contradicted by Welsh, who stated that she had never
encouraged Barter to apply to be the Principal and that she
could not have supported Barter's candidacy. This was at
the same time that Superintendent Welsh was having
discussions with Barter about her performance growth plan and
telling her that significant performance improvement had to
be made by the end of 2014.
court credits Welsh's testimony on this issue. This is
one of a number of instances where the court did not find
Barter's testimony to be credible and is also emblematic
of differences between Barter's self-portrayal and the
way she was seen by others.
Superintendent Welsh did encourage Barter to serve on the
interview committee because Barter would be working with the
Brian Campbell, who had previously been an Assistant
Principal at Morse High School and had served for four years
as Principal at the combined middle and high school in
Searsport, was one of the persons who applied to be Freeport
High School Principal. In part because he already had
extensive experience developing a proficiency-based education
curriculum, he was perceived to be the strongest candidate by
the interview committee - with the notable exception of
Barter was a vocal opponent of Campbell's candidacy and
continued to express her opposition even after it became
clear that the vast majority of committee members strongly
supported him. This got to the point where Superintendent
Welsh felt that Barter's continued and lengthy statements
in opposition were impeding the committee and were damaging
Barter in the eyes of the committee members. Ultimately, once
she saw that Campbell was going to be offered the job over
her objections, Barter said that she would support Campbell
Following his hiring, Campbell visited the school to meet the
staff and some students on June 9. When Barter was about to
leave for the day, she thanked him for coming and hoped his
back was feeling better (Campbell was experiencing some back
problems). Campbell answered, "Thanks, hon." Barter
did not say anything at the time but that evening she emailed
Superintendent Welsh to say that she was uncomfortable with
that comment and was planning to email Campbell to tell him
the end of an email to Campbell on other subjects on June 10,
Barter added, "On another note, I would prefer that you
not refer to me as hun. Thanks, Ann
Marie." Campbell responded by email, "No
problem. Do it with everyone. Will keep it very
professional." Campbell did not address Barter as
Around this same time, Campbell raised the subject of the
office layout in the high school administrative area because
he did not favor the location of the office that had been
used by Bob Strong. Barter sent Campbell an email stating
that Craig Sickels, who was the RSU 5 athletic director and
who had an office in the administrative area, did not like
his office and was elsewhere several days each week. She also
stated that Sickels had been the Attendance Coordinator
during the past year and that typically Sickels was assigned
that job. Barter did not send a copy of the email to
Sickels, who in fact liked his office, who was not away from
the office as much as Barter had stated, and who was not
typically assigned - and did not want - to work as Attendance
Coordinator. Sickels was given a copy of Barter's
email by a secretary who had seen it and eventually told Campbell
that it was misleading and inaccurate.
July Barter met with Acting Superintendents LaFortune and
Michaud, who were meeting with all the administrative-level
personnel individually. They were used to an arrangement
where an assistant principal would be supervised by the
principal. When that subject came up, Barter explained that
she had previously been supervised by Shannon Welsh and did
not want that arrangement to change. They said they would
consider that. Based on what Welsh had told him, Michaud was
under the impression that Barter was on an action plan. When
Barter disagreed, he checked her file and confirmed that she
had not been placed on a formal action plan.
August 2014 there were discussions between Barter and
Campbell as to how their responsibilities would be divided
and what tasks would be assigned to Barter. Barter was
concerned about this because under Strong she had enjoyed
being the lead person on proficiency-based education, which
was a major area of Campbell's expertise.
Sometime around the second week of August, when Barter
mentioned to Campbell that she was going to a sleep study, he
responded to the effect that he had also had a sleep study
and had made the mistake of forgetting his pajamas so he had
gone "commando." She responded by saying,
"TMI" (too much information). She ...