
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  Drummond               __________________             _______________      ________          Woodsum & MacMahon was on brief for appellees.          __________________                                 ____________________                                  November 21, 1995                                 ____________________                                        ____________________          *  Of the District of Massachusetts, sitting by designation.                    TORRUELLA,  Chief  Judge.   Plaintiff-appellant Barbara                    TORRUELLA,  Chief  Judge.                                ____________          Wytrwal ("Appellant"  or "Wytrwal"),  a former  special education          teacher at  Saco Middle School  in Saco,  Maine, sued  defendant-          appellees, the  then-Superintendent  of Schools  for Saco  School          District Dr. Cynthia Mowles,  the Saco School Board and  the City          of   Saco  (collectively,   the  "Appellees"),   for  retaliatory          nonrenewal of her employment contract under  (1) the Civil Rights          Act, 42 U.S.C.    1983; (2) the Maine  Whistleblowers' Protection          Act,  26  M.R.S.A.    833(1); and  (3)  a  common  law theory  of          intentional  infliction  of  emotional  distress.1   Following  a          bench trial, the district court denied all of appellant's claims.          Appellant  seeks review  of that  decision here.   We  affirm the          decision of the district court.                                  I.  BACKGROUND                                      I.  BACKGROUND                    We  begin with  the facts  as supportably found  by the          district court after  a bench trial.  See Wytrwal  v. Mowles, No.                                                ___ _______     ______          93-360-P-C, slip op. at 2-32 (D. Me. May 5, 1995).                    Wytrwal began  to teach behaviorally  impaired students          at Saco  Middle School  in  the Fall  of 1990.    Wytrwal was  in          probationary status for her first two years on the job,  like all                                        ____________________          1   Because  plaintiff-appellant's statement  of issues  includes          only  these three  claims, she  has abandoned  her  former fourth          claim under the common  law theory of wrongful discharge,  and it          is therefore  waived.   Washington Legal Found.  v. Massachusetts                                  _______________________     _____________          Bar Found.,  993 F.2d 962, 970  n.4 (1st Cir.  1993) (ruling that          __________          claims  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  else forever          hold its peace.").                                         -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  Dr. Cynthia Mowles  ("Mowles"), the  then-Superintendent of          Schools  for the Saco School  District, who decided  not to grant          continuing contract status.   Mowles testified that she made  her          decision based  on comments  from Saco Middle  School's principal          Joseph Voci ("Voci") and  assistant principal Gregory T. Goodness          ("Goodness") regarding  Wytrwal's trouble managing  her students,          her difficulties working  with supervisors and other  co-workers,          and her time  spent out  of the  classroom.   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  considerable degree.  In          contrast,  Wytrwal contends that she  was fired for  stating at a          school  board  meeting that  the  school's  placement of  special          education  students  violated  state  and   federal  regulations.          Wytrwal  has  alleged  that  these  violations   exacerbated  her          already-difficult job.                    By all  accounts, Wytrwal's  first year at  Saco Middle          School was  quite successful.   During her second  year, however,          she began to have some problems.  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  year  were  considered  by  school   officials  extremely          dangerous,  suicidal, and violent  to themselves and  others.  In                                         -3-                                         -3-          addition, two  of her second year students  were on court-ordered          probation and, as a  condition of their probation, they  were not          supposed to have contact  with each other.  Finally,  on February          11,  1992,  Wytrwal spoke  at an  executive  session of  the Saco          School   Board   at   the   invitation   of   Elizabeth  DeSimone          ("DeSimone"),  a  School Board  member  alarmed  by a  particular          domestic disturbance involving one of Wytrwal's students.                    Present  at  the  meeting  were  Wytrwal,  five  school          administrators,  including  Mowles,  Voci, Goodness  and  Special          Education Director David  Stickney ("Stickney"), and five  school          board members, including DeSimone.   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  the  impact  of  not having  programs  designed          specifically to  meet the  needs of emotionally  and behaviorally          impaired  students.    Furthermore,  according  to  Wytrwal,  she          specifically  told  the board  that  Stickney  had prevented  the          placement  of  some  students   in  more  appropriate,  and  more          expensive, programs outside  of the school  district.  She  added          that  Stickney had said that, if necessary, he would overrule the          consensus  student placement  judgments  of  teams  of  teachers,          social  workers,  and  other  professionals, which  would  be  an          illegal act on his part.                    Defendants-appellees uniformly testified that Wytrwal's          presentation  at  the  school   board  meeting  did  not  include          allegations  that  Saco  Middle  School  was  violating   special                                         -4-                                         -4-          education laws  by failing  to appropriately place  students, but          the district court rejected  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  meeting."   In  particular, the  district court  found          DeSimone's  claimed "complete  lapse in  memory" at trial  on the          subject of  Wytrwal's presentation to be  "highly suspect," given          that  Wytrwal attended the meeting at DeSimone's invitation.  Not          surprisingly, the  district court inferred that  Wytrwal told the          school  board  that  Saco  Middle School  was  violating  special          education laws  by failing  to appropriately place  students, and          that Wytrwal's presentation to the board was a  motivating factor          in the decision not to renew her contract.                          However, the  district court also found  that there was          evidence  that  Wytrwal  had   difficulties  with  Stickney  that          preceded  the  presentation before  the  school  board.   Wytrwal          herself  testified that  she argued  vehemently with  Stickney in          private regarding the allegations of violations of law.  She also          testified that  Stickney attempted to claim credit  for a special          education  program  she  had  designed.    Furthermore,  Stickney          testified that he  was put off by a memo from Wytrwal criticizing          the way he  had introduced  a social  worker to  Wytrwal and  her          students,  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  of          a disagreement regarding a  student's educational plan.  Stickney          testified  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  behavior.   On February  27, 1992,          Stickney sent  a letter  ("the February  27  letter") to  Wytrwal          outlining  his criticisms  of her.   Wytrwal  took the  letter to          Jeffrey Wilder  ("Wilder"), a  union representative, in  order to          get  it removed from her  personnel file.   Eventually, a meeting          was convened with  Mowles, Wytrwal, Stickney  and Wilder, at  the          end of which Mowles  instructed Stickney to keep the  February 27          letter out of Wytrwal's file and to rewrite the letter, giving  a          draft to Wytrwal  and Wilder.   Stickney refused  to redraft  the          February 27 letter.                    On April  9, 1992, Voci  gave Wytrwal an  evaluation he          had written and  told her that he had recommended  to Mowles that          her  contract not  be renewed.   Wytrwal  testified that  she was          shocked to  learn she would  not be renewed.   A few  days later,          Mowles  wrote  to Wytrwal  informing her  that  she would  not be          continued  as a teacher in  special education at  the Saco Middle          School.                    Wytrwal  subsequently brought this action alleging that          her   contract   was  not   renewed   in   retaliation  for   her          constitutionally-protected   speech    regarding   the   school's                                        ____________________          2   The  district  court noted  that this  statement contradicted          other testimony  by Stickney that he had made up his mind in Fall          1991 that Wytrwal should not be renewed.                                         -6-                                         -6-          noncompliance   with  state   and   federal   special   education          regulations.  Wytrwal  here seeks review of  the district court's          denial  of her claims  under the  Civil Rights  Act, 42  U.S.C.            1983,  the Maine  Whistleblowers' Protection  Act, 26  M.R.S.A.            833(1),  and  under  a  Maine common  law  theory  of intentional          infliction of emotional distress.                              II.  STANDARDS OF REVIEW                               II.  STANDARDS OF REVIEW                     With respect to Wytrwal's   1983 claim, the standard of          review must  be interpreted  in conjunction with  the substantive          legal standard involved, enunciated in Mt. Healthy City Board  of                                                 __________________________          Ed.  v. Doyle, 429  U.S. 274, 285  (1977).  See  also O'Connor v.          ___     _____                               _________ ________          Steeves, 994 F.2d 905,  913 (1st Cir.),  cert. denied by Town  of          _______                                  _______________ ________          Nahant, Mass.  v. O'Connor,  ___ U.S.  ___, 114  S. Ct. 634,  126          _____________     ________          L.Ed.  593 (1993).  Findings  on "what is  protected free speech"          are subject to  de novo review.  Duffy v.  Sarault, 892 F.2d 139,                                           _____     _______          145  (1st  Cir. 1989);  see also  O'Connor,  994 F.2d  at 912-13.                                  ________  ________          However, findings on "whether that  speech substantially affected          a defendant's  employment decision and whether  the defendant has          met his  preponderance burden  that  the decision  would be  made          anyway"  are  subject  to  review  under  the  clearly  erroneous          standard.  Duffy, 892 F.2d at 139; see also O'Connor, 994 F.2d at                     _____                   ________ ________          913  (concluding that  clear  error review  is appropriate  where          judgment is  entered after  a trial on  the merits).   Thus,  the          clearly  erroneous standard  applies to  the   1983  finding that          Wytrwal   challenges,   namely,  whether   appellees   met  their                                         -7-                                         -7-          preponderance  burden under Mt. Healthy.  Duffy, 892 F.2d at 145-                                      ___________   _____          46.                    With  respect to  the state  law claims  of retaliatory          nonrenewal  in violation of  the Maine Whistleblowers' Protection          Act  and of intentional infliction of emotional distress, after a          bench trial, we will not set aside the trial  court's findings of          fact unless demonstrated  to be clearly  erroneous.  Williams  v.                                                               ________          Poulos, 11  F.3d 271,  277 (1st  Cir. 1993),  cited in  N.H. Ball          ______                                        ________  _________          Bearings v. Aetna  Cas. and Sur. Co., 43 F.3d  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.  DISCUSSION                                   III.  DISCUSSION                                  A.  42 U.S.C. 1983                                  A.  42 U.S.C. 1983                                  __________________                    Appellant alleges that Saco  Middle School chose not to          renew her contract because of her  school board presentation, and          that this nonrenewal by a state actor because of  her exercise of          her constitutional  rights entitles  her to  redress.   42 U.S.C.            1983.3     We   uphold   the  district   court's   conclusions,                                        ____________________          3  Which states in relevant part that:                      Every  person  who,  under  color  of any                      statute,  ordinance,  regulation, custom,                      or usage,  of any State  or Territory  or                      the  District  of Columbia,  subjects, or                      causes  to be  subjected, any  citizen of                      the United States  or other person within                      the    jurisdiction   thereof    to   the                      deprivation of any rights, privileges, or                      immunities  secured  by the  Constitution                      and laws,  shall be liable  to the  party                      injured  in an  action  at  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  of the service provided  by its employees.          See Connick  v. Myers, 461 U.S.  138, 146, 150 (1983).   However,          ___ _______     _____          the district  court also concluded that  while appellant's speech          was a  "motivating" factor in the  employment decision, appellees          were  not liable,  since they  showed by  a preponderance  of the          evidence  that  they would  have made  the  same decision  in the          absence of the  protected conduct.  See  Duffy, 892 F.2d  at 145;                                              ___  _____          Mt. Healthy,  429 U.S. at 285.   As a result,  the district court          ___________          denied  appellant's    1983  claims.    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  show "by a  preponderance of  the          evidence that [it]  would have reached  the same decision  . .  .          even in the  absence of the protected conduct."  Mt. Healthy, 429                                                           ___________          U.S. at 285 (1977).                                        ____________________                      equity,  or  other proper  proceeding for                      redress. . . .          42 U.S.C.   1983.                                         -9-                                         -9-                    Under review  for clear  error, we uphold  the district          court's  finding   that  appellant's  protected  conduct   was  a          "motivating"  factor behind  the Board's  decision not  to rehire          her.  The district court's finding had ample evidentiary support,          given  Wytrwal's  overall   testimony,  DeSimone's   questionable          testimony  of  a complete  lapse  in  memory regarding  Wytrwal's          presentation, Stickney's own testimony that he  was angry when he          left the meeting, and  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  of the evidence, that  they would not have renewed          appellant's  contract  even  in  the  absence  of  the  protected          conduct.   The district court  found sufficient support  for this          ruling  in  the evidence  that Wytrwal  had an  untenable working          relationship with Stickney,  the special  education director;  in          testimony  by Mowles,  Goodness and  Voci that  they had  ongoing          concerns throughout  the second year  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  appellees  carried  their  burden  of  persuasion,          particularly  in light  of the  district court's  conclusion that                                         -10-                                         -10-          appellees  fabricated their  testimony.   However,  that part  of          appellees' testimony  that the district court  rejected concerned          appellees' version of the  content of appellant's presentation at          the school board meeting.   The district court found  in favor of          appellant  that  her  speech  was both  protected  conduct  and a          substantial or  motivating factor  in her termination.   However,          the   district  court  credited  appellees'  testimony  regarding          Wytrwal's   job  performance.    Such  a  choice  is  within  the          discretion of the  factfinder, NLRB  v. Izzi, 395  F.2d 241,  243                                         ____     ____          (1st Cir. 1968)  (factfinder may  credit the rest  of a  witness'          testimony  even if  part is  not believable).   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  v. Bank of Boston,  924 F.2d 1169,  1178 (1st Cir. 1991)          _______     ______________          ("[W]e [the  Court of Appeals] are  not to weigh the  evidence or          make credibility judgments.").  We do not find clear error.                    Finally,  we must  reject  appellant's contention  that          appellees' reasons for terminating her must have been independent          from  her  protected  conduct in  the  sense  that  they must  be          unrelated by subject matter.   In Mt. Healthy, the  Supreme Court                                            ___________          explicitly rejected a proposed test that would have required that          the alternative  grounds  for denial  of  a teacher's  tenure  be          "independent of  any First Amendment rights  or exercise thereof"          as  overprotective.  Mt. Healthy,  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  to the assurance of those          rights";  including  undeserved  grant   of  tenure  as  such  an          undesirable consequence).  It is true that Mt. Healthy does state                                                     ___________          that school  boards should be allowed to prove to a trier of fact          that they  would not  have rehired  teachers  for reasons  "quite          apart  from" their  protected conduct.   Id.  at  286.   But this                                                   __          language in the opinion cannot mean that if there are other valid          reasons,  such   as  a  poor  relationship   with  superiors  and          coworkers,  these  reasons are  inadmissible  if  related to  the          protected  conduct, since Mt.  Healthy also explicitly criticizes                                    ____________          tests  of  causation  that  could  place  employees  in a  better          position  as  a  result   of  the  exercise  of  constitutionally          protected  conduct than  they otherwise  would have  occupied had          they  done nothing.  Id. at 285.  The interpretation suggested by                               ___          appellant  would   have  the   unfortunate  effect   of  allowing          plaintiff-employees  to immunize  themselves against  their prior          problems with  defendant  supervisors by  their  later  protected          conduct.  We decline to adopt such a rule.                       B.  Maine Whistleblowers' Protection Act                       B.  Maine Whistleblowers' Protection Act                       ________________________________________                    Appellant asks that this  Court overturn the  rejection          of her claim  under the Maine  Whistleblowers' Protection Act  on          the  grounds  that  the  district  court  erred in  finding  that          appellees  had proven by a preponderance of the evidence that her          contract  would  not  have  been  renewed  absent  her  protected          conduct.  In light of the absence of Maine case law regarding the                                         -12-                                         -12-          content  of the burden appellees must bear under the statute,4 we          agree with  the district  court's decision  to apply  the federal          standards arising under Title  VII case law as other  courts have          in similar situations.   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.  1993);  Melchi  v.  Burns                                                          ______      _____          International  Security Services,  Inc.,  597 F.  Supp. 575,  581          _______________________________________          (E.D.  Mich.  1984);  Kennedy  v.  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  a  three  stage inquiry.    Id.    First, appellant  must                                              ___          establish a prima facie case.   Id.  One Maine case  defines this                                          ___          burden in  particular under the Maine  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                                        ____________________          4   The  Maine Whistleblowers'  Protection Act  provides that  an          employer may  not discriminate against any  employee, among other          reasons, because:                      The employee, acting in  good faith . . .                      reports  orally  or  in  writing  to  the                      employer  or  a  public  body   what  the                      employee   has  cause  to  believe  is  a                      violation of a law or  rule adopted under                      the  laws  of  this  State,  a  political                      subdivision of this  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)  she  was the  subject  of  adverse  employment          action, and (3)  there was  a causal link  between the  protected          activity and  the adverse employment  action.  Id.   In Bard, the                                                         ___      ____          Supreme Judicial  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  law principles.   Under  such          principles,  a  prima  facie  case  gives  rise  to  a rebuttable          presumption  that the  employer unlawfully  discriminated against          the Title VII  plaintiff.   Smith v. Stratus  Computer, Inc.,  40                                      _____    _______________________          F.3d  11, 15 (1st Cir. 1994), cert.  denied, ___ U.S. ___, 115 S.                                        _____________          Ct.  1958, 131 L.Ed.2d 850 (1995).  Similarly, therefore, a prima          facie  case  of  violation of  the  Maine  Act  gives rise  to  a          rebuttable presumption  that the employer retaliated  against the          employee for reporting illegal activities.  See McDonnell Douglas                                                      ___ _________________          v. Green, 411 U.S. 792, 802-05 (1973).             _____                    Subsequently,  at the  second  stage of  the  McDonnell                                                                  _________          Douglas inquiry, the  employer must produce  sufficient competent          _______          evidence,  taken as  true,  to permit  a  rational factfinder  to          conclude  that  there  was  a nondiscriminatory  reason  for  the          challenged employment action, thereby displacing  the presumption          of intentional discrimination generated  by the prima facie case.          Byrd, 61 F.3d 1026,  1031; Woodman v. Haemonetics Corp.,  51 F.3d          ____                       _______    _________________          1087, 1091 (1st Cir. 1995).                                         -14-                                         -14-                    Then,  at the  third and final  stage in  the McDonnell                                                                  _________          Douglas analysis,  the employee, who  has the ultimate  burden of          _______          persuasion   throughout,   must  present   sufficient  admissible          evidence,  if  believed, to  prove  by  a  preponderance  of  the          evidence  each element  in  a  prima  facie  case  and  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  district  court  found  that  appellant  made  the          requisite  prima facie  case, and that  the employer  carried its          second  stage burden  of  production.   Ultimately, the  district          court   ruled   that  defendant-appellees   presented  persuasive          evidence that appellant  was discharged for  permissible reasons,          and  so appellant could not  prove pretext by  a preponderance of          the  evidence.  Appellant's sole  argument on appeal  is that the          district  court erred  in  finding  that defendant-appellees  had          proved  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  appellant's   1983  claim, we have          already  upheld the  district court's  finding under  Mt. Healthy                                                                ___________          that,  by a  preponderance of  the  evidence, defendant-appellees          would have made the same decision in the absence of her protected          conduct.  In  accord with that finding under  the same facts, the          same  standard of  review and  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  a claim  for intentional  infliction of          emotion distress,  appellant must  show that (1)  appellees acted          intentionally  or recklessly or  were substantially  certain that          severe emotional  distress would  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  a  civilized  community; (3)  appellees'          conduct  caused   appellant  emotional  distress;  and   (4)  the          emotional distress suffered  by appellant was  so severe that  no          reasonable person could be expected to endure it.  Gray v. State,                                                             ____    _____          624 A.2d 479, 484 (Me. 1993).                      The  district court  denied this  claim on  the grounds          that  Mowles' reasoned process  of decision  making could  not be          characterized as  the requisite  extreme and  outrageous conduct.          Without citation  to Maine  authority, appellant argues  that the          district court  erred by  assuming that Mowles'  decision not  to          renew Wytrwal's  contract was  the correct factual  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  speech was a  motivating factor          under Mt. Healthy  in the  employment decision in  and of  itself                ___________          compels a finding of extreme and outrageous conduct, and that any          argument  that appellees  would have  made the same  decision for          permissible  reasons is  irrelevant.   We  reject this  argument.          Maine  case law  defines  "extreme" and  "outrageous" conduct  as                                         -16-                                         -16-          behavior that exceeds "all possible bounds of decency" and  which          must  be regarded  as "atrocious,  and utterly  intolerable in  a          civilized  community."  Gerber v. Peters, 584  A.2d 605, 608 (Me.                                  ______    ______          1990),   cited  in  Adams,  624  A.2d  at  484.    Given  Maine's                   _________  _____          endorsement  of  a  standard  rooted in  community  standards  of          conduct,  and  Mt. Healthy's  logically  consistent balancing  of                         ___________          individual  constitutional rights  against society's  interest in          the  efficient delivery of  state services, we  cannot agree with          appellant that we must ignore  appellees' arguments under the Mt.                                                                        ___          Healthy burden shifting  analysis in weighing the  outrageousness          _______          of  appellees'  conduct.    Thus,  with  respect  to  appellant's          argument  that  conduct  antagonistic  to  her  exercise  of  her          constitutional rights is intolerable in a civilized community, we          conclude that  the balance  of societal interests,  including the          harm of  undeserved tenure for teachers, militates against such a          finding.  Having  found that  appellant cannot  carry her  burden          under   the  second  prong  of  the  Maine  tort  of  intentional          infliction of  emotional distress,  we need  not reach  the other          three prongs.                                   IV.  CONCLUSION                                   IV.  CONCLUSION                    For the foregoing reasons, the judgment of the district          court is affirmed.  Costs to appellees.                   affirmed                   ________                                         -17-                                         -17-
