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USCA1 Opinion

UNITED STATES COURT OF APPEALS


FOR THE FIRST CIRCUIT
____________________

No. 95-1543

BARBARA WYTRWAL,

Plaintiff - Appellant,

v.

SACO SCHOOL BOARD, ET AL.,

Defendants - Appellees.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. Gene Carter, U.S. District Judge]


___________________

____________________

Before

Torruella, Chief Judge,


___________

Lynch, Circuit Judge,


_____________

and Stearns,* District Judge.


______________

_____________________

Carl E. Kandutsch, with whom


__________________

William C. Knowles,
__________________

James E.
________

McCormack and Verrill & Dana were on brief for appellant.


_________
______________
Jerrol A. Crouter, with whom
__________________

Eric R. Herlan and


_______________

Woodsum & MacMahon was on brief for appellees.


__________________

Drummond
________

____________________

November 21, 1995


____________________

____________________

Of the District of Massachusetts, sitting by designation.

TORRUELLA,
TORRUELLA,

Chief Judge.
Chief Judge.
____________

Plaintiff-appellant Barbara

Wytrwal ("Appellant"

teacher at

or "Wytrwal"),

Saco Middle School

appellees, the

of

Saco

in Saco,

then-Superintendent

District Dr. Cynthia Mowles,

(collectively,

a former

Maine, sued

of Schools

Act,

26

M.R.S.A.

intentional

the

"Appellees"),

1983; (2) the Maine

833(1); and

infliction

of

defendant-

for Saco

the Saco School Board and

nonrenewal of her employment contract under

Act, 42 U.S.C.

special education

(3)

emotional

for

School

the City

retaliatory

(1) the Civil Rights

Whistleblowers' Protection

common

law theory

distress.1

Following

of

bench trial, the district court denied all of appellant's claims.

Appellant

seeks review

of that

decision here.

decision of the district court.

I.
I.

BACKGROUND
BACKGROUND

We

affirm the

We

begin with

district court after

the facts

a bench trial.

as supportably found

See Wytrwal
___ _______

by the

v. Mowles, No.
______

93-360-P-C, slip op. at 2-32 (D. Me. May 5, 1995).

Wytrwal began

at Saco

Middle School

to teach behaviorally

in

the Fall

impaired students

of 1990.

Wytrwal was

probationary status for her first two years on the job,

in

like all

____________________

Because

only

plaintiff-appellant's statement

these three

claims, she

of issues

has abandoned

her

former fourth

claim under the common

law theory of wrongful discharge,

is therefore

Washington Legal Found.


_______________________

Bar Found.,
__________
claims

waived.

993 F.2d 962, 970

n.4 (1st Cir.

includes

and it

v. Massachusetts
_____________

1993) (ruling that

not included in statement of issues have, on appeal, been

abandoned and

are waived); Rivera-G mez


____________

v. de Castro,
_________

843 F.2d

631, 635 (1st Cir. 1988) ("A litigant has an obligation 'to spell
out its arguments squarely and distinctly' . . . or
hold its peace.").

else forever

-2-2-

other new teachers at the school.

At the end of the second year,

teachers are considered for continuing contract status -- similar

to being awarded tenure.

The decision on Wytrwal's status rested

with

("Mowles"), the

Dr. Cynthia Mowles

Schools

for the Saco School

continuing contract status.

then-Superintendent of

District, who decided

not to grant

Mowles testified that she made

her

decision based

on comments

Joseph Voci ("Voci") and

("Goodness") regarding

spent out

School's principal

assistant principal Gregory T. Goodness

Wytrwal's trouble managing

her difficulties working

and her time

from Saco Middle

with supervisors and other

of the

classroom.

her students,

co-workers,

The district

court

viewed evidence on Wytrwal's mental illness, unknown to appellees

before pretrial discovery, as corroborative of the claim that she

had been absent from the classroom to a

contrast,

school

board

education

Wytrwal

Wytrwal contends that she

meeting that

students

has

violated

alleged

already-difficult job.

that

the

was fired for

school's

state

these

considerable degree.

and

stating at a

placement of

federal

violations

In

special

regulations.

exacerbated

her

By all

School was

accounts, Wytrwal's

quite successful.

first year at

During her second

she began to have some problems.

Saco Middle

year, however,

Her class grew much larger that

second year, reaching a peak of eighteen, as compared to six

the

year before.

Several of the more problematic students during her

second

were

year

dangerous,

considered

by

suicidal, and violent

-3-3-

school

officials

to themselves and

extremely

others.

In

addition, two

of her second year students

probation and, as a

condition of their probation, they

supposed to have contact

11,

1992,

School

with each other.

Wytrwal spoke

Board

("DeSimone"),

at

were on court-ordered

the

at an

executive

invitation

School Board

member

of

Finally,

were not

on February

session of

the Saco

Elizabeth

DeSimone

alarmed

by a

particular

domestic disturbance involving one of Wytrwal's students.

Present

administrators,

at

the

meeting

were

including

Mowles,

Voci, Goodness

Education Director David

Wytrwal,

five

school

and

Special

Stickney ("Stickney"), and five

board members, including DeSimone.

school

All agree that Wytrwal spoke

at the meeting and that it was unusual for a teacher to address a

School Board meeting.

Wytrwal testified

that, at the

meeting,

she

focused

on

specifically to

impaired

the

impact

meet the

students.

specifically

placement

of

told

Furthermore,

the board

that

students

in

some

programs

according

Stickney

more

designed

and behaviorally

to

Wytrwal,

she

had prevented

the

appropriate,

of the school

district.

and

She

more

added

Stickney had said that, if necessary, he would overrule the

consensus

social

not having

needs of emotionally

expensive, programs outside

that

of

student placement

workers,

and

other

judgments

of

teams

professionals, which

of

teachers,

would

be

an

illegal act on his part.

Defendants-appellees uniformly testified that Wytrwal's

presentation

at

allegations

that

the

Saco

school

Middle

board

School

meeting

was

did

not

violating

include

special

-4-4-

education laws

by failing

to appropriately place

the district court rejected

students, but

this testimony, concluding that "the

testimony at trial of the administrators and school board members

was

fabricated in an attempt to cover up what really occurred at

the board

DeSimone's

meeting."

In

particular, the

claimed "complete

lapse in

district court

memory" at trial

found

on the

subject of

that

Wytrwal's presentation to be

"highly suspect," given

Wytrwal attended the meeting at DeSimone's invitation.

surprisingly, the

school

board

education laws

that

district court inferred that

Saco

Middle School

by failing

was

Wytrwal told the

violating

to appropriately place

that Wytrwal's presentation to the board was a

Not

special

students, and

motivating factor

in the decision not to renew her contract.

However, the

evidence

that

preceded

the

herself

Wytrwal

district court also found

had

difficulties

presentation before

testified that

she argued

the

that there was

with

school

Stickney

board.

vehemently with

Stickney attempted to claim credit

Wytrwal

Stickney in

private regarding the allegations of violations of law.

testified that

that

She also

for a special

education

program

testified that he

the way he

students,

she

had

designed.

Furthermore,

Stickney

was put off by a memo from Wytrwal criticizing

had introduced

a social

worker to

Wytrwal and

her

even though she had worked for the school district for

less than eight weeks at the time.

Stickney also testified that, two days after the school

board meeting, Wytrwal angrily stormed out of a meeting with him,

-5-5-

regular school teachers, and other professionals, as a result

a disagreement regarding a

testified

student's educational plan.

of

Stickney

that he decided at that point not to recommend Wytrwal

for

a continuing contract,2 and that he then discussed with Voci

his

concerns about Wytrwal's

Stickney sent

outlining

a letter

his criticisms

Jeffrey Wilder

get

("the February

of her.

("Wilder"), a

it removed from her

was convened with

behavior.

On February

27

Wytrwal

letter") to

took the

personnel file.

Wytrwal

letter to

union representative, in

Mowles, Wytrwal, Stickney

end of which Mowles

27, 1992,

order to

Eventually, a meeting

and Wilder, at

instructed Stickney to keep the

February 27

letter out of Wytrwal's file and to rewrite the letter, giving

draft to Wytrwal

and Wilder.

Stickney refused

the

to redraft

the

February 27 letter.

On April

had written and

her

Mowles

continued

be renewed.

learn she would

wrote

gave Wytrwal an

told her that he had recommended

contract not

shocked to

9, 1992, Voci

to Wytrwal

as a teacher in

Wytrwal

to Mowles that

testified that

not be renewed.

informing her

evaluation he

A few

that

special education at

she was

days later,

she would

not be

the Saco Middle

School.

Wytrwal

her

contract

subsequently brought this action alleging that

was

not

constitutionally-protected

renewed

speech

in

retaliation

regarding

the

for

her

school's

____________________

The

district

other testimony

court noted

that this

statement contradicted

by Stickney that he had made up his mind in Fall

1991 that Wytrwal should not be renewed.

-6-6-

noncompliance

with

regulations.

Wytrwal

denial

1983,

833(1),

state

and

federal

special

here seeks review of

of her claims

the Maine

and

under the

the district court's

Civil Rights

Whistleblowers' Protection

under

Maine common

infliction of emotional distress.

law

education

Act, 42

Act, 26

theory

U.S.C.

M.R.S.A.

of intentional

II.
II.

STANDARDS OF REVIEW
STANDARDS OF REVIEW

With respect to Wytrwal's

review must

be interpreted

1983 claim, the standard of

in conjunction with

the substantive

legal standard involved, enunciated in Mt. Healthy City Board of


__________________________

Ed.
___

v. Doyle, 429
_____

U.S. 274, 285

Steeves, 994 F.2d 905,


_______

Nahant, Mass.
_____________

L.Ed.

are subject to

145

(1st

913 (1st Cir.),

v. O'Connor,
________

593 (1993).

Findings

___ U.S.

___, 114

Duffy v.
_____

see also
________

However, findings on "whether that

See also O'Connor v.


_________ ________

cert. denied by Town of


_______________ ________

on "what is

de novo review.

Cir. 1989);

(1977).

O'Connor,
________

S. Ct. 634,

126

protected free speech"

Sarault, 892 F.2d 139,


_______

994 F.2d

at 912-13.

speech substantially affected

a defendant's

employment decision and whether

met his

preponderance burden

anyway"

are

standard.

913

subject

judgment is

Wytrwal

review

the decision

under

the

would be

clearly

made

erroneous

Duffy, 892 F.2d at 139; see also O'Connor, 994 F.2d at


_____
________ ________

(concluding that

clearly

to

that

the defendant has

clear

entered after

erroneous standard

challenges,

error review

a trial on

applies to

namely,

whether

-7-7-

is appropriate

the merits).

the

1983

appellees

Thus,

where

the

finding that

met

their

preponderance

burden under Mt. Healthy.


___________

Duffy, 892 F.2d at 145_____

46.

With

nonrenewal

Act

respect to

the state

in violation of

law claims

of retaliatory

the Maine Whistleblowers' Protection

and of intentional infliction of emotional distress, after a

bench trial, we will not set aside the trial

fact unless demonstrated

Poulos, 11
______

F.3d 271,

to be clearly

277 (1st

court's findings of

erroneous.

Cir. 1993),

Bearings v. Aetna Cas. and Sur. Co., 43 F.3d


________
________________________

Williams
________

cited in
________

v.

N.H. Ball
_________

749, 752 (1st Cir.

1995).

Mistakes

of state

law are

subject to de

novo review.

Crellin Technologies, Inc. v. Equipmentlease Corp., 18 F.3d 1, 7


__________________________
_____________________

(1st Cir. 1994); N.H. Ball Bearings, 43 F.3d at 752.


__________________

III.
III.

DISCUSSION
DISCUSSION

A. 42 U.S.C. 1983
A. 42 U.S.C. 1983
__________________

Appellant alleges that Saco

renew her contract because of her

Middle School chose not to

school board presentation, and

that this nonrenewal by a state actor because of

her constitutional

1983.3

We

rights entitles

uphold

the

her to

district

her exercise of

redress.

court's

____________________

Which states in relevant part that:

Every

person

who,

under

color

of any

42 U.S.C.

conclusions,

statute,

ordinance,

or usage,
the

of any State

District

causes

to be

or Territory

of Columbia,

or

subjects, or

subjected, any

the United States


the

regulation, custom,

citizen of

or other person within

jurisdiction

thereof

to

the

deprivation of any rights, privileges, or


immunities
and laws,
injured

secured

by the

shall be liable
in an

action

at

Constitution
to the

party

law, suit

in

-8-8-

unchallenged by appellees here, that appellant spoke on a

matter

of

public

concern and

that

her

interest in

that

expression

outweighed countervailing governmental interests in promoting the

efficient performance

See Connick
___ _______

v. Myers, 461 U.S.


_____

the district

was a

were

court also concluded that

not liable,

that

absence of the

Mt. Healthy,
___________

since they

they would

employment decision, appellees

have made

protected conduct.

appellant's

1983

However,

while appellant's speech

showed by

429 U.S. at 285.

by its employees.

138, 146, 150 (1983).

"motivating" factor in the

evidence

denied

of the service provided

See
___

the

a preponderance

of the

same decision

in the

Duffy, 892 F.2d


_____

As a result,

claims.

at 145;

the district court

Appellant

challenges the

district court's finding that appellees met this burden.

The district

court applied the correct legal standard,

that of

Mt. Healthy,
___________

which directs that

the plaintiff-employee

must first show that

the protected expression was

a substantial

or motivating factor

in the adverse employment decision;

if the

plaintiff meets this test, the defendant governmental entity must

be afforded an

opportunity to

evidence that [it]

even in the

show "by a

would have reached

preponderance of

the same decision

absence of the protected conduct."

____________________

or

other proper

redress. . . .

42 U.S.C.

1983.

Mt. Healthy, 429


___________

U.S. at 285 (1977).

equity,

. .

the

proceeding for

-9-9-

Under review

court's

finding

"motivating"

her.

given

for clear

that

error, we uphold

appellant's

factor behind

protected

the Board's

the district

conduct

decision not

was

to rehire

The district court's finding had ample evidentiary support,

Wytrwal's

testimony

of

overall

a complete

testimony,

lapse

in

DeSimone's

questionable

memory regarding

Wytrwal's

presentation, Stickney's own testimony that he

left the meeting, and

was angry when he

the fact that Stickney put

his criticisms

of Wytrwal into writing for the first time only 16 days after the

meeting.

However, we

also uphold

as not clearly

erroneous the

district court's factual finding that appellees established, by a

preponderance

appellant's

conduct.

ruling

of the evidence, that

contract

even

The district court

in

the evidence

by Mowles,

concerns throughout

the

absence

of

the

found sufficient support

that Wytrwal

relationship with Stickney,

testimony

in

they would not have renewed

had an

the special

Goodness and

the second year

protected

for this

untenable working

education director;

Voci that

they had

in

ongoing

with Wytrwal's performance,

including difficulties working with other specialists involved in

her students' education; and in evidence that Wytrwal spent a lot

of time out of

the classroom, corroborated by other

evidence of

her mental illness.

Appellant contends that the district court erred in its

finding

that

particularly

appellees

in light

carried

of the

their

burden

district court's

-10-10-

of

persuasion,

conclusion that

appellees

fabricated their

appellees' testimony

testimony.

that the district court

appellees' version of the

that

her

speech

was both

motivating factor

the

court

Wytrwal's

job

(1st Cir. 1968)

testimony

credited

Such

(factfinder may

part is

in favor of

conduct

in her termination.

factfinder, NLRB
____

even if

protected

appellees'

performance.

discretion of the

of

rejected concerned

The district court found

substantial or

district

that part

content of appellant's presentation at

the school board meeting.

appellant

However,

However,

testimony

choice

is

v. Izzi, 395
____

credit the rest

not believable).

and a

regarding

within

the

F.2d 241,

243

of a

witness'

Ultimately,

such

credibility determinations are the unique role of the factfinder.

Flanders & Medeiros, Inc. v.


__________________________

Bogosian, 65 F.3d
________

198, ___,

(1st

Cir. 1995) (assessing credibility is a task

for the factfinder);

Connell
_______

1178 (1st Cir. 1991)

v. Bank of Boston,
______________

("[W]e [the

924 F.2d 1169,

Court of Appeals] are

make credibility judgments.").

Finally,

we must

not to weigh the

evidence or

We do not find clear error.

reject

appellant's contention

that

appellees' reasons for terminating her must have been independent

from

her

protected

conduct in

unrelated by subject matter.

the

sense

that

In Mt. Healthy, the


___________

they must

be

Supreme Court

explicitly rejected a proposed test that would have required that

the alternative

grounds

"independent of

any First Amendment rights

as

overprotective.

for denial

Mt. Healthy,
___________

of

a teacher's

tenure

be

or exercise thereof"

429 U.S. at

285 (stating that

the proper

test

in a

"mixed

motive" context

must

"protect[]

-11-11-

against the invasion of

constitutional rights without commanding

undesirable consequences not necessary

rights";

including

undeserved

undesirable consequence).

that school

grant

to the assurance of those

of

tenure

as

such

an

It is true that Mt. Healthy does state


___________

boards should be allowed to prove to a trier of fact

that they

apart

would not

from" their

have rehired

teachers

protected conduct.

Id.
__

for reasons

at

286.

"quite

But this

language in the opinion cannot mean that if there are other valid

reasons,

such

coworkers,

as

these

poor

relationship

reasons are

inadmissible

with

superiors

and

if

related to

the

protected

conduct, since Mt. Healthy also explicitly criticizes


____________

tests

causation

of

position

protected

they

as

result

conduct than

done nothing.

appellant

that

would

plaintiff-employees

problems with

could

of

the

the

of

in a

better

constitutionally

would have

occupied had

The interpretation suggested by

unfortunate

to immunize

defendant

employees

exercise

they otherwise

Id. at 285.
___

have

place

effect

of

themselves against

supervisors by

their

later

allowing

their prior

protected

conduct.

We decline to adopt such a rule.

B. Maine Whistleblowers' Protection Act


B. Maine Whistleblowers' Protection Act
________________________________________

Appellant asks that this

of her claim

under the Maine

the

that

grounds

appellees

the

Court overturn the

rejection

Whistleblowers' Protection Act

district

court

erred in

finding

on

that

had proven by a preponderance of the evidence that her

contract

would

not

have

been

renewed

conduct.

In light of the absence of Maine case law regarding the

-12-12-

absent

her

protected

content

of the burden appellees must bear under the statute,4 we

agree with

the district

court's decision

standards arising under Title

in similar situations.

to apply

the federal

VII case law as other

courts have

See LaFond
___ ______

v. General Physics Services


_________________________

Corp., 50 F.3d 165, 172 (2d Cir. 1995); Rosen v. Transx Ltd., 816
_____
_____
___________

F.

Supp.

1364,

1367-68

(D.

Minn.

International Security Services, Inc.,


_______________________________________

(E.D.

Mich.

1984);

Kennedy
_______

v.

1993);

Melchi
______

597 F.

v.

Supp. 575,

Burns
_____

581

Guilford Technical Community


______________________________

College, 448 S.E.2d 280, 281-82 (N.C. App. 1994).


_______

Appellant does

not,

in any case, contest the district court's decision to apply

federal standards.

McDonnell Douglas v. Green, 411 U.S. 792, 802-05 (1973)


_________________
_____

adopts

three

stage inquiry.

establish a prima facie case.

burden in

Id.
___

Id.
___

particular under the Maine

First, appellant

One Maine case

must

defines this

Whistleblowers' Protection

Act.

See Bard v. Bath Iron Works Corp., 590 A.2d 152, 154 (Me.
___ ____
______________________

1991)

(defining

prima

facie

case,

but

finding

that

former

employee did not satisfy his burden thereunder, and therefore not

____________________

The

Maine Whistleblowers'

employer may

Protection Act

not discriminate against any

reasons, because:

provides that

an

employee, among other

The employee, acting in

good faith . . .

reports

writing

employer
employee

orally
or
has

or

in

public
cause

to

violation of a law or
the

laws

of

this

body

the

what

the

believe

is

rule adopted under


State,

subdivision of this

to

political

State or the

United

States.

26 M.R.S.A.

833(1)(A).

-13-13-

considering employer's burdens).

To establish a prima facie case

of

violation

of

the

Maine

Whistleblowers'

Protection

Act,

appellant must show that (1) she engaged in activity protected by

the statute,

(2)

action, and (3)

activity and

she

was the

there was

subject

a causal link

the adverse employment

Supreme Judicial

of

adverse

employment

between the

action.

Id.
___

protected

In Bard, the
____

Court of Maine cited to a federal case, Moon v.


____

Transport Drivers, Inc., 836 F.2d 226, 229 (6th Cir. 1987), which
_______________________

in

turn relied

on discrimination

principles,

presumption

that the

the Title VII

F.3d

prima

facie

case

law principles.

gives

employer unlawfully

plaintiff.

rise

to

Under

such

a rebuttable

discriminated against

Smith v. Stratus Computer, Inc.,


_____
_______________________

40

11, 15 (1st Cir. 1994), cert. denied, ___ U.S. ___, 115 S.
_____________

Ct.

facie

1958, 131 L.Ed.2d 850 (1995).

case

of

violation of

rebuttable presumption

the

Similarly, therefore, a prima

Maine

Act

gives rise

that the employer retaliated

employee for reporting illegal activities.

to

against the

See McDonnell Douglas


___ _________________

v. Green, 411 U.S. 792, 802-05 (1973).


_____

Subsequently,

Douglas inquiry, the


_______

evidence,

conclude

taken as

that

there

at the

second

stage of

employer must produce

true,

was

to permit

rational factfinder

challenged employment action, thereby displacing

Byrd, 61 F.3d 1026,


____

McDonnell
_________

sufficient competent

a nondiscriminatory

of intentional discrimination generated

the

reason

for

to

the

the presumption

by the prima facie case.

1031; Woodman v. Haemonetics Corp.,


_______
_________________

51 F.3d

1087, 1091 (1st Cir. 1995).

-14-14-

Then,

at the

Douglas analysis,
_______

persuasion

evidence,

evidence

third and final

the employee, who

throughout,

if

must

believed, to

each element

in

prima

the McDonnell
_________

has the ultimate

present

prove

stage in

by

sufficient

facie

burden of

admissible

preponderance

case

and

of

the

that

the

employer's justification for the challenged employment action was

merely

a pretext for impermissible . . . discrimination."

Byrd,
____

61 F.3d at 1026; Woodman, 51 F.3d at 1092.


_______

The

requisite

district

court

prima facie

found

case, and that

stage burden

of

court

ruled

defendant-appellees

evidence that appellant

so appellant could not

the

evidence.

proved

court erred

presented

in

finding

the

carried its

district

persuasive

permissible reasons,

prove pretext by

Appellant's sole

made

Ultimately, the

was discharged for

and

district

appellant

the employer

second

that

production.

that

a preponderance of

argument on appeal

is that the

that defendant-appellees

had

by a preponderance of the evidence her contract would not

have been renewed absent her protected conduct.

Under review for

clear

error, with respect to

already

that,

upheld the

by a

appellant's

district court's

preponderance of

the

1983

claim, we have

finding under

Mt. Healthy
___________

evidence, defendant-appellees

would have made the same decision in the absence of her protected

conduct.

same

In

accord with that finding under

standard of

review and

the same facts, the

the same evidentiary

standard, we

reject appellant's argument under the McDonnell-Douglas framework


_________________

for the same reasons as under the Mt. Healthy analysis.


___________

-15-15-

C. Intentional Infliction of Emotional Distress


C. Intentional Infliction of Emotional Distress
________________________________________________

To

prevail on

emotion distress,

intentionally

a claim

appellant must

or recklessly or

severe emotional

distress would

for intentional

show that (1)

infliction of

appellees acted

were substantially

certain that

result from their

conduct; (2)

appellees' conduct was so extreme and outrageous as to exceed all

possible

bounds of decency and must be regarded as atrocious and

utterly

intolerable in

conduct

caused

appellant

emotional distress suffered

civilized

emotional

community; (3)

distress;

by appellant was

and

appellees'

(4)

so severe that

the

no

reasonable person could be expected to endure it.

Gray v. State,
____
_____

624 A.2d 479, 484 (Me. 1993).

The

that

district court

denied this

Mowles' reasoned process

characterized as

the requisite

Without citation

to Maine

district court

erred by

renew Wytrwal's

of decision

claim on

the grounds

making could

extreme and

outrageous conduct.

authority, appellant argues

assuming that Mowles'

contract was

not be

that the

decision not

the correct factual

to

predicate for

the intentional infliction of emotional distress claim.

Instead,

appellant contends, as a matter of law, that the district court's

finding that

her protected free

under Mt. Healthy


___________

in the

speech was a

motivating factor

employment decision in

and of

itself

compels a finding of extreme and outrageous conduct, and that any

argument

that appellees

permissible

Maine

reasons is

case law

defines

would have

made the same

irrelevant.

"extreme" and

We

decision for

reject this

argument.

"outrageous" conduct

as

-16-16-

behavior that exceeds "all possible bounds of decency" and

must

be regarded

as "atrocious,

and utterly

which

intolerable in

civilized

1990),

community."

cited in
_________

endorsement

conduct,

and

individual

the

of

Gerber v. Peters, 584


______
______

Adams,
_____

624

Maine's

standards

of

Mt. Healthy's
___________

logically

consistent balancing

of

Healthy burden shifting


_______

that

Given

community

efficient delivery of

argument

484.

rooted in

constitutional rights

appellees'

at

standard

against society's

state services, we

appellant that we must ignore

of

A.2d

A.2d 605, 608 (Me.

interest in

cannot agree with

appellees' arguments under the Mt.


___

analysis in weighing the

conduct.

Thus,

with

conduct

antagonistic

respect

to

her

outrageousness

to

appellant's

exercise

of

her

constitutional rights is intolerable in a civilized community, we

conclude that

harm of

the balance

of societal interests,

including the

undeserved tenure for teachers, militates against such a

finding.

under

Having

the

infliction of

found that

second

prong

appellant cannot

of

the

emotional distress,

Maine

we need

tort

carry her

of

not reach

burden

intentional

the other

three prongs.

IV.
IV.

CONCLUSION
CONCLUSION

For the foregoing reasons, the judgment of the district

court is affirmed.
affirmed
________

Costs to appellees.

-17-17-

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