FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MAINE [Hon. John A. Woodcock, Jr., U.S. District Judge]
Richard L. O'Meara, with whom Stacey D. Neumann and
Murray, Plumb & Murray were on brief, for appellant.
M. McCormick, with whom Melissa A. Hewey and Drummond Woodsum
were on brief, for appellee.
Torruella, Lynch, and Kayatta, Circuit Judges.
KAYATTA, Circuit Judge.
Richard, formerly a kindergarten teacher at Waterboro
Elementary School, sued Regional School Unit 57 ("RSU
57"), claiming that by retaliating against her for her
advocacy on behalf of students with disabilities, it violated
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 Richard's version of
events, but nevertheless found that she had not met her
burden of proving that the adverse actions she suffered came
as a result of her advocacy. Accordingly, the district court
entered judgment for RSU 57. Seeing no clear error in the
district court's well-explained findings, we affirm.
2006, Charlene Richard began teaching full-time at Waterboro
Elementary School. Prior to the conclusion of the 2013-14
school year, Richard received positive reviews of her
teaching. She had no complaints from parents, colleagues, or
the school, and had no reprimands on her employment record.
In short -- as the district court found -- her record was
usually had a few special education students assigned to her
classroom each year. When she was assigned such a student,
her practice was to review the student's Individualized
Education Plan ("IEP") and contact the
student's parents. In addition to managing students who
already had IEPs, Richard was often in a position to
determine whether other students had potential learning
disabilities warranting referral to appropriate professionals
relevant time period, special education in RSU 57 worked as
follows: Students in need of special education fell into
three categories: (1) those previously identified as
qualifying for special education, (2) those not previously
identified as qualifying but suspected of qualifying through
testing, and (3) those not previously identified as in need
of special education or suspected of qualifying via testing,
but subsequently identified as potentially in need of special
education. Though RSU 57 relied upon teachers to identify
students in need of assistance, it encouraged those teachers,
prior to referring a student to the IEP team, to use a
process called "Response to Intervention"
("RTI"). RTI is a four-tiered process involving
escalating support for students potentially in need of
special education, the goal of which is to help a student
without formally labeling him or her as disabled and creating
an IEP. However, parents have a legal right to refer their
children to the IEP team at any time and avoid the RTI
concerning Richard's interaction with the special
education system arose in 2012, when she expressed concern
that a student in her class may have been in need of special
education. The student was ultimately diagnosed with autism
and placed in a special program. Then, in March 2014, a
student known as K.M. transferred to Waterboro Elementary
School ("WES") and joined Richard's class.
Richard had received no information about this student and
was not able to contact his parents, but noted various
disturbing behaviors. When she contacted K.M.'s teacher
from his prior school, she learned that K.M. had issues there
as well, and was being fast-tracked into RTI tier three prior
to his transfer. When Richard sought help from the WES
administration, the administration only offered the prospect
of buzzing the principal's office if K.M. became violent.
to the 2014-2015 school year, Richard learned that her class
would contain three students -- K.N., G.T., and L.S.
--previously identified as requiring special education.
Richard was concerned that her class would be too large to
allow her to effectively support these students. In addition,
despite making multiple requests, Richard did not receive
copies of these student's IEPs until after the school
year had already begun. After the year started, it became
clear that two other students in her class -- T.K. and L.P.
-- might also be in need of intervention. These students were
sometimes violent, and targeted two other students -- B.D.
and C.S. -- in particular. A behavior specialist was brought
in to assist with the situation; she checked in from
suggested using the same plan for T.K., without conducting an
independent assessment of T.K. Later that year, Richard
reported seeing this behavioral specialist holding the door
to the "break room" -- a secluded room where
students having difficulty could go -- closed, and reported
overhearing the same specialist requesting that a janitor
remove the interior handle on the door. The
administrative procedures manual for RSU 57 prohibited such
year went on, it became clear that T.K. and L.P.'s
behavior was a significant issue. Many parents complained,
and in December, C.S.'s parents emailed Richard, as well
as Principal Christine Bertinet, to inform them that T.K. had
tried to pull down C.S.'s pants and had previously turned
hot water on C.S. while she washed her hands. In addition,
Richard became aware that L.P. had thrown a chair at B.D. On
December 2, 2014, the same day C.S.'s parents sent the
email, Richard filled out a form referring T.K. and L.P. to
the Student Assessment Team ("SAT"), a group tasked
with helping students with behavioral issues.
mother, angered at what she perceived as unsafe classroom
conditions, called Superintendent John Davis on December 4,
2014, and told him that B.D. had been subjected to physical
abuse. She was complimentary toward Richard, but wanted to
know how RSU 57 planned to address the situation. She
requested a meeting to address the issue and one was
next day, Superintendent Davis emailed Richard, Principal
Bertinet, Vice Principal Melissa Roberts, and Clinton Nash,
Richard's union representative, to set up a meeting for
the group to discuss issues in Richard's classroom. At
the meeting, Superintendent Davis accused Richard of
breaching student confidentiality with parents.
Superintendent Davis then told Richard that she was
"pathetic," that RSU 57 had wasted ten years on
her, and that if she could not handle twenty or more
students, they would find her a job she could handle.
Superintendent Davis said that parents had been complaining
about Richard for years, though he declined to identify any
such parents when Richard pressed the issue. Superintendent
Davis denied that several incidents said to have occurred in
Richard's classroom had ever happened, told Richard,
"You are the problem, not the boys," and stated
that an educational technician would be the "eyes and
ears" of the administration, observing Richard.
Superintendent Davis ended the meeting by telling Richard to
"get back to class and teach."
the meeting, Principal Bertinet gave Richard a memorandum,
and placed a copy of this memorandum in Richard's
personnel file, outlining an expectation that Richard would
implement the behavior plan in her classroom, work with her
and Vice Principal Roberts on behavior management techniques,
and keep the administration abreast of all parent
communications. The memorandum also expressed concern that
Richard was not implementing the behavior plan. Richard
responded, asking Principal Bertinet to be more specific
about any ways in which Richard was failing to implement the
behavior plan. Ultimately, Principal Bertinet revised the
memorandum to eliminate the portion referring to
Richard's failure to implement the behavior plan.
issues persisted in Richard's classroom. In response,
Richard sought assistance, arguing that the administration
unduly minimized the fact that T.K. was targeting another
point during the course of these events, Superintendent Davis
said to Nash, "What is it I need to do to have Charlene
Richard resign?" Eventually RSU 57 transferred Richard
to a different school and placed her on a performance
improvement plan. Richard then sued, alleging that RSU