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Barter v. Regional School Unit 5

Superior Court of Maine, Cumberland

April 24, 2018




         This 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.

         A 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.

         Plaintiff 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.

         The court makes the following findings of fact and conclusions of law:

         1. Ann 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.

         2. From 1992 through 1996 she worked at Windham Adult Education and earned several significant awards as an Adult Education teacher.

         3. In 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.

         4. She 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.

         5. 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.

         6. In 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 years.[1]

         7. After the 2012-13 school year Barter received a formal evaluation from Superintendent Welsh. That evaluation was positive.[2] 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.

         8. 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.

         9. The 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.

         10. 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."

         11. 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.

         12. In 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.

         13. In 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.

         14. The 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.

         15. Superintendent Welsh did encourage Barter to serve on the interview committee because Barter would be working with the new principal.

         16. 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.

         17. 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 going forward.

         18. 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 so.

         19. At 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."[3] Campbell responded by email, "No problem. Do it with everyone. Will keep it very professional." Campbell did not address Barter as "hon" again.

         20. 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.[4] 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.[5] Sickels was given a copy of Barter's email by a secretary who had seen it[6] and eventually told Campbell that it was misleading and inaccurate.

         21. In 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.

         22. In 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.

         23. 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 ...

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