Documenti di Didattica
Documenti di Professioni
Documenti di Cultura
No. 95-1543
BARBARA WYTRWAL,
Plaintiff - Appellant,
v.
Defendants - Appellees.
____________________
____________________
Before
_____________________
William C. Knowles,
__________________
James E.
________
Drummond
________
____________________
____________________
TORRUELLA,
TORRUELLA,
Chief Judge.
Chief Judge.
____________
Plaintiff-appellant Barbara
Wytrwal ("Appellant"
teacher at
or "Wytrwal"),
appellees, the
of
Saco
in Saco,
then-Superintendent
(collectively,
a former
Maine, sued
of Schools
Act,
26
M.R.S.A.
intentional
the
"Appellees"),
833(1); and
infliction
of
defendant-
for Saco
Act, 42 U.S.C.
special education
(3)
emotional
for
School
the City
retaliatory
Whistleblowers' Protection
common
law theory
distress.1
Following
of
Appellant
seeks review
of that
decision here.
I.
I.
BACKGROUND
BACKGROUND
We
affirm the
We
begin with
the facts
a bench trial.
as supportably found
See Wytrwal
___ _______
by the
v. Mowles, No.
______
Wytrwal began
at Saco
Middle School
to teach behaviorally
in
the Fall
impaired students
of 1990.
Wytrwal was
in
like all
____________________
Because
only
plaintiff-appellant's statement
these three
claims, she
of issues
has abandoned
her
former fourth
is therefore
Bar Found.,
__________
claims
waived.
includes
and it
v. Massachusetts
_____________
abandoned and
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-
with
("Mowles"), the
Schools
then-Superintendent of
not to grant
her
decision based
on comments
("Goodness") regarding
spent out
School's principal
of the
classroom.
her students,
co-workers,
The district
court
contrast,
school
board
education
Wytrwal
meeting that
students
has
violated
alleged
already-difficult job.
that
the
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
Saco Middle
year, however,
the
year before.
second
were
year
dangerous,
considered
by
-3-3-
school
officials
to themselves and
extremely
others.
In
addition, two
probation and, as a
11,
1992,
School
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
Present
administrators,
at
the
meeting
were
including
Mowles,
Voci, Goodness
Wytrwal,
five
school
and
Special
school
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
consensus
social
not having
needs of emotionally
that
of
student placement
workers,
and
other
judgments
of
teams
professionals, which
of
teachers,
would
be
an
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
students, but
was
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
surprisingly, the
school
board
education laws
that
Saco
Middle School
by failing
was
violating
to appropriately place
Not
special
students, and
motivating factor
However, the
evidence
that
preceded
the
herself
Wytrwal
had
difficulties
presentation before
testified that
she argued
the
with
school
Stickney
board.
vehemently with
Wytrwal
Stickney in
testified that
that
She also
for a special
education
program
testified that he
the way he
students,
she
had
designed.
Furthermore,
Stickney
had introduced
a social
worker to
Wytrwal and
her
even though she had worked for the school district for
-5-5-
a disagreement regarding a
testified
of
Stickney
for
his
Stickney sent
outlining
a letter
his criticisms
Jeffrey Wilder
get
("the February
of her.
("Wilder"), a
behavior.
On February
27
Wytrwal
letter") to
took the
personnel file.
Wytrwal
letter to
union representative, in
27, 1992,
order to
Eventually, a meeting
and Wilder, at
February 27
draft to Wytrwal
and Wilder.
Stickney refused
the
to redraft
the
February 27 letter.
On April
her
Mowles
continued
be renewed.
wrote
gave Wytrwal an
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
School.
Wytrwal
her
contract
was
not
constitutionally-protected
renewed
speech
in
retaliation
regarding
the
for
her
school's
____________________
The
district
other testimony
court noted
that this
statement contradicted
-6-6-
noncompliance
with
regulations.
Wytrwal
denial
1983,
833(1),
state
and
federal
special
of her claims
the Maine
and
under the
Civil Rights
Whistleblowers' Protection
under
Maine common
law
education
Act, 42
Act, 26
theory
U.S.C.
M.R.S.A.
of intentional
II.
II.
STANDARDS OF REVIEW
STANDARDS OF REVIEW
review must
be interpreted
in conjunction with
the substantive
Ed.
___
v. Doyle, 429
_____
Nahant, Mass.
_____________
L.Ed.
are subject to
145
(1st
v. O'Connor,
________
593 (1993).
Findings
___ U.S.
___, 114
Duffy v.
_____
see also
________
on "what is
de novo review.
Cir. 1989);
(1977).
O'Connor,
________
S. Ct. 634,
126
994 F.2d
at 912-13.
a defendant's
met his
preponderance burden
anyway"
are
standard.
913
subject
judgment is
Wytrwal
review
the decision
under
the
would be
clearly
made
erroneous
(concluding that
clearly
to
that
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
46.
With
nonrenewal
Act
respect to
the state
in violation of
law claims
of retaliatory
Poulos, 11
______
F.3d 271,
to be clearly
277 (1st
court's findings of
erroneous.
Cir. 1993),
Williams
________
cited in
________
v.
N.H. Ball
_________
1995).
Mistakes
of state
law are
subject to de
novo review.
III.
III.
DISCUSSION
DISCUSSION
A. 42 U.S.C. 1983
A. 42 U.S.C. 1983
__________________
her constitutional
1983.3
We
rights entitles
uphold
the
her to
district
her exercise of
redress.
court's
____________________
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
regulation, custom,
citizen of
jurisdiction
thereof
to
the
secured
by the
shall be liable
in an
action
at
Constitution
to the
party
law, suit
in
-8-8-
matter
of
public
concern and
that
her
interest in
that
expression
efficient performance
See Connick
___ _______
the district
was a
were
not liable,
that
absence of the
Mt. Healthy,
___________
since they
they would
have made
protected conduct.
appellant's
1983
However,
showed by
by its employees.
evidence
denied
See
___
the
a preponderance
of the
same decision
in the
As a result,
claims.
at 145;
Appellant
challenges the
The district
that of
Mt. Healthy,
___________
the plaintiff-employee
a substantial
or motivating factor
if the
be afforded an
opportunity to
even in the
show "by a
preponderance of
____________________
or
other proper
redress. . . .
42 U.S.C.
1983.
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
Wytrwal's
testimony
of
overall
a complete
testimony,
lapse
in
DeSimone's
questionable
memory regarding
Wytrwal's
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
preponderance
appellant's
conduct.
ruling
contract
even
in
the evidence
by Mowles,
concerns throughout
the
absence
of
the
that Wytrwal
testimony
in
had an
the special
Goodness and
protected
for this
untenable working
education director;
Voci that
they had
in
ongoing
of time out of
evidence of
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
her
speech
was both
motivating factor
the
court
Wytrwal's
job
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
substantial or
district
that part
appellant
However,
However,
testimony
choice
is
v. Izzi, 395
____
not believable).
and a
regarding
within
the
F.2d 241,
243
of a
witness'
Ultimately,
such
Bogosian, 65 F.3d
________
198, ___,
(1st
Connell
_______
v. Bank of Boston,
______________
("[W]e [the
Finally,
we must
evidence or
reject
appellant's contention
that
from
her
protected
conduct in
the
sense
that
they must
be
Supreme Court
the alternative
grounds
"independent of
as
overprotective.
for denial
Mt. Healthy,
___________
of
a teacher's
tenure
be
or exercise thereof"
429 U.S. at
the proper
test
in a
"mixed
motive" context
must
"protect[]
-11-11-
rights";
including
undeserved
undesirable consequence).
that school
grant
of
tenure
as
such
an
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
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
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.
of her claim
the
that
grounds
appellees
the
rejection
district
court
erred in
finding
on
that
contract
would
not
have
been
renewed
conduct.
-12-12-
absent
her
protected
content
agree with
the district
court's decision
in similar situations.
to apply
the federal
courts have
See LaFond
___ ______
Corp., 50 F.3d 165, 172 (2d Cir. 1995); Rosen v. Transx Ltd., 816
_____
_____
___________
F.
Supp.
1364,
1367-68
(D.
Minn.
(E.D.
Mich.
1984);
Kennedy
_______
v.
1993);
Melchi
______
597 F.
v.
Supp. 575,
Burns
_____
581
Appellant does
not,
federal standards.
adopts
three
stage inquiry.
burden in
Id.
___
Id.
___
First, appellant
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
reasons, because:
provides that
an
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
subdivision of this
to
political
State or the
United
States.
26 M.R.S.A.
833(1)(A).
-13-13-
of
violation
of
the
Maine
Whistleblowers'
Protection
Act,
the statute,
(2)
activity and
she
was the
there was
subject
a causal link
Supreme Judicial
of
adverse
employment
between the
action.
Id.
___
protected
In Bard, the
____
Transport Drivers, Inc., 836 F.2d 226, 229 (6th Cir. 1987), which
_______________________
in
turn relied
on discrimination
principles,
presumption
that the
F.3d
prima
facie
case
law principles.
gives
employer unlawfully
plaintiff.
rise
to
Under
such
a rebuttable
discriminated against
40
11, 15 (1st Cir. 1994), cert. denied, ___ U.S. ___, 115 S.
_____________
Ct.
facie
case
of
violation of
rebuttable presumption
the
Maine
Act
gives rise
to
against the
Subsequently,
evidence,
conclude
taken as
that
there
at the
second
stage of
true,
was
to permit
rational factfinder
McDonnell
_________
sufficient competent
a nondiscriminatory
the
reason
for
to
the
the presumption
51 F.3d
-14-14-
Then,
at the
Douglas analysis,
_______
persuasion
evidence,
evidence
throughout,
if
must
believed, to
each element
in
prima
the McDonnell
_________
present
prove
stage in
by
sufficient
facie
burden of
admissible
preponderance
case
and
of
the
that
the
merely
Byrd,
____
The
requisite
district
court
prima facie
found
stage burden
of
court
ruled
defendant-appellees
the
evidence.
proved
court erred
presented
in
finding
the
carried its
district
persuasive
permissible reasons,
prove pretext by
Appellant's sole
made
Ultimately, the
and
district
appellant
the employer
second
that
production.
that
a preponderance of
argument on appeal
is that the
that defendant-appellees
had
clear
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
standard of
review and
standard, we
-15-15-
To
prevail on
emotion distress,
intentionally
a claim
appellant must
or recklessly or
severe emotional
distress would
for intentional
infliction of
appellees acted
were substantially
certain that
conduct; (2)
possible
utterly
intolerable in
conduct
caused
appellant
civilized
emotional
community; (3)
distress;
by appellant was
and
appellees'
(4)
so severe that
the
no
Gray v. State,
____
_____
The
that
district court
denied this
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.
contract was
not be
that the
decision not
to
predicate for
Instead,
finding that
in the
speech was a
motivating factor
employment decision in
and of
itself
argument
that appellees
permissible
Maine
reasons is
case law
defines
would have
irrelevant.
"extreme" and
We
decision for
reject this
argument.
"outrageous" conduct
as
-16-16-
must
be regarded
as "atrocious,
and utterly
which
intolerable in
civilized
1990),
community."
cited in
_________
endorsement
conduct,
and
individual
the
of
Adams,
_____
624
Maine's
standards
of
Mt. Healthy's
___________
logically
consistent balancing
of
that
Given
community
efficient delivery of
argument
484.
rooted in
constitutional rights
appellees'
at
standard
against society's
state services, we
of
A.2d
interest in
conduct.
Thus,
with
conduct
antagonistic
respect
to
her
outrageousness
to
appellant's
exercise
of
her
conclude that
harm of
the balance
of societal interests,
including the
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
court is affirmed.
affirmed
________
Costs to appellees.
-17-17-