          United States Court of Appeals
                     For the First Circuit


No. 17-2200

                        CHARLENE RICHARD,

                      Plaintiff, Appellant,

                               v.

                    REGIONAL SCHOOL UNIT 57,

                      Defendant, Appellee.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF MAINE

        [Hon. John A. Woodcock, Jr., U.S. District Judge]


                             Before

                 Torruella, Lynch, and Kayatta,
                         Circuit Judges.


     Richard L. O'Meara, with whom Stacey D. Neumann and Murray,
Plumb & Murray were on brief, for appellant.
     Jeana M. McCormick, with whom Melissa A. Hewey and Drummond
Woodsum were on brief, for appellee.


                         August 21, 2018
          KAYATTA, Circuit Judge.          Charlene 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.

                                     I.

          In 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 exemplary.

          Richard 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


                                   - 2 -
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 for intervention.

             In the 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 process entirely.

             Issues 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.


                                       - 3 -
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.

           Prior 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

time to time on the class, created a "behavior plan" for L.P., and


                                      - 4 -
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.1                 The

administrative    procedures    manual    for   RSU 57   prohibited     such

actions.

            As the 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.

            B.D.'s mother, angered at what she perceived as unsafe

classroom    conditions,     called    Superintendent    John   Davis     on




     1 Richard reported this incident after Principal Bertinet,
Vice Principal Roberts, and the behavioral specialist demanded
that Richard complete a "seclusion report" for L.P., even though
she had never taken him or any other student to the break room as
a disciplinary measure.


                                  - 5 -
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 scheduled.

           The 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."2


     2 Perhaps unsurprisingly, Superintendent Davis's recollection
of this meeting was quite different. However, the district court


                                 - 6 -
            After 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.

            Behavioral 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 student, B.D.

            At    some    point   during     the     course     of   these    events,

Superintendent Davis said to Nash, "What is it I need to do to




credited Richard's testimony as to what happened in the meeting,
not Superintendent Davis's, finding his conduct in the meeting to
be "accusatory, derogatory, and unprofessional." Richard v. Reg'l
Sch. Unit 57, 296 F. Supp. 3d 274, 306 (D. Me. 2017).
Superintendent Davis himself admitted that he was "frustrated and
angry" during the meeting. Id. at 293. These facts are consistent
with other testimony about the meeting, id. at 291–94, and RSU 57
does not now challenge the district court's findings as to what
occurred at the meeting.


                                      - 7 -
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 57's

actions amounted to retaliation against her for her advocacy for

disabled students.

            The district court held a five-day bench trial on the

matter.   It then solicited post-trial briefing from both parties.

In November 2017, it issued a sixty-seven page decision containing

findings of fact and conclusions of law.             Richard v. Reg'l Sch.

Unit 57, 296 F. Supp. 3d 274 (D. Me. 2017).             In its factfinding,

the district court largely credited Richard's version of events.

It then chose to structure its analysis of the evidence by using

the method adopted in McDonnell Douglas Corp. v. Green, 411 U.S.

792    (1973),   for   analyzing    motions    for    summary   judgment    in

discrimination cases.

            As   the   district    court   itself    noted,   there   is   some

question as to whether the McDonnell Douglas analysis is even

useful at the trial stage.         Richard, 296 F. Supp. 3d at 277–78,

301.   We have noted that once a plaintiff makes out a prima facie

case, "the McDonnell Douglas framework, with its intricate web of

presumptions     and    burdens,     becomes    an     anachronism.         The

[factfinder], unaided by any presumptions, must simply answer the

question of whether the employee has carried the ultimate burden

of proving retaliation."      Palmquist v. Shinseki, 689 F.3d 66, 71


                                    - 8 -
(1st Cir. 2012) (citations omitted).            And because a plaintiff who

defeats summary judgment must have offered, at that stage, enough

evidence to meet its burden of production on the prima facie case,

examples of plaintiffs who make it to trial but fail to present a

prima facie case will be few and far between.                 In short, once a

case   has    reached    trial,     the   McDonnell    Douglas     analysis    has

virtually no work left to do.

              The Ninth Circuit has reasoned similarly, noting that

once each party meets its burden of production, the McDonnell

Douglas framework is no longer relevant.               See Sanghvi v. City of

Claremont, 328 F.3d 532, 537 (9th Cir. 2003) (citing St. Mary's

Honor Ctr. v. Hicks, 509 U.S. 502, 510 (1993)).               The Tenth Circuit

has gone even further, stating that "the three-part McDonnell

Douglas      burden-shifting      analysis     is   limited   to   the   summary

judgment context.       Once there has been a full trial on the merits,

the sequential analytical model adopted from McDonnell Douglas

. . . drops out and we are left with the single overarching issue

whether plaintiff [met her burden of persuasion]."                  Kendrick v.

Penske Transp. Servs., Inc., 220 F.3d 1220, 1226 (10th Cir. 2000)

(ellipsis in original) (internal quotation marks omitted) (quoting

Fallis v. Kerr-McGee Corp., 944 F.2d 743, 744 (10th Cir. 1991)).

              Be that as it may, in this particular case neither party

complains that the district court -- at the parties' joint behest

--   employed    the    McDonnell    Douglas    mode   of   analysis.     In   so


                                      - 9 -
proceeding, the court first asked whether Richard made out a prima

facie case of retaliation, then whether RSU 57 articulated a

nonretaliatory reason for its actions, and if so, whether Richard

demonstrated that the nonretaliatory reason was in fact pretext.

See McDonnell Douglas, 411 U.S. at 802–07.              The district court

found that Richard had made out a prima facie case and that RSU 57

had offered a legitimate reason for its actions (Superintendent

Davis's   frustration    with   Richard        and   other    professionals'

inability to manage the kindergarten classroom at issue).                The

court also found that Richard demonstrated that this reason was

pretextual, given that Superintendent Davis had taken no action

against any other education professional at Waterboro Elementary

School as a result of the issues in Richard's classroom.           Richard,

296 F. Supp. 3d at 300–02.

           Having found that the reason given by RSU 57 for its

adverse actions against Richard was untrue, the district court

turned to the ultimate question:           Had Richard proved that it was

more   likely   than   not   that    her     advocacy   for   students   with

disabilities had actually prompted the actions against her?              The

district court was unconvinced.        It explained, most notably, that

it found scant evidence that Superintendent Davis was even aware

of Richard's advocacy as of the December 8, 2014 meeting.            It even

found the evidence "equivocal at best as to whether . . . Davis

was aware that Ms. Richard had completed the SAT paperwork for


                                    - 10 -
T.K. and L.P."          Id. at 306.      The district court also found that

advocacy for a handful of children with disabilities was not the

type of activity that was likely to have prompted Superintendent

Davis's ire.       Id. at 302–04.        RSU 57 routinely referred 80 to 120

students for education services each year, with most of the

referrals coming from kindergarten. During the year relevant here,

there were only 80 referrals, with no evidence that a few more

would have been unusual or caused any budgetary pressure.                        Id. at

302. Nor was the district court convinced that there was "anything

about the characteristics of either T.K. or L.P. that would have

caused RSU 57 any specific budgetary concern."                 Id.    The district

court     then      analyzed       several     other    possible           causes     of

Superintendent Davis's animosity toward Richard, concluding that

the     only    explanation    that      was   not   "inexplicable"         was     that

Superintendent       Davis    was   perhaps       operating   on     the    incorrect

impression that Richard was unable to manage her classroom.                         Id.

at 307.        But as the district court noted, this did not mean that

his actions came as a result of Richard's advocacy.                   As for other

possible indicia or sources of bias that may have influenced

Superintendent Davis, the district court found that none existed.

Id.     It also found that Principal Bertinet and Vice Principal

Roberts,       though    hostile    to    Richard,     appeared      to     be    doing

Superintendent Davis's bidding, rather than acting out of any

animus connected with Richard's advocacy.                     Id. at 304.           The


                                         - 11 -
district    court   entered      judgment     for   RSU 57,    and   this   appeal

followed.

                                        II.

                                        A.

            Richard makes only one argument that at least plausibly

claims legal, rather than factual, error.                Richard contends that

the district court improperly required her to present evidence of

causation beyond that which supported her prima facie case. Citing

Lang v. Wal-Mart Stores East, L.P., 813 F.3d 447, 457 (1st Cir.

2016) and Dichner v. Liberty Travel, 141 F.3d 24, 30 (1st Cir.

1998),   she   posits     that   once   a     district   court   has   found    an

employer's reason for acting to be pretextual, the court must find

a violation.

            This argument confuses two concepts:              what the evidence

permits a factfinder to do, and what the evidence compels a

factfinder to do.        Richard is correct that once a factfinder is

satisfied that an employer's reasons for taking an adverse action

are pretextual, it may find for the plaintiff on causation without

further evidence.        See Lang, 813 F.3d at 458.           But Richard cites

no authority for the proposition that once pretext is established,

a factfinder must find in the plaintiff's favor.               To the contrary,

Lang states that "rejection of the employer's proffered reasons

will permit, though not compel, the trier of fact to infer the

ultimate    fact    of     [retaliation]."            Id.     (emphasis     added)


                                     - 12 -
(alterations omitted) (quoting In re Seacoast Fire Equip. Co., 777

A.2d 869, 873 (N.H. 2001)).

            Nothing in the record compels the conclusion that the

district court misunderstood these precedents and believed that

Richard was required as a matter of law to produce additional

evidence beyond that which established pretext.                     Rather, the

district    court    thoughtfully    explained    that    while     Richard    had

presented evidence sufficient to show RSU 57's reasoning to be

pretextual, this evidence alone did not convince the court that

RSU 57's true reason for acting was to retaliate against Richard.

In   so   doing,    the   district   court    pointed    to   our   decision    in

Palmquist, 689 F.3d at 71, which held that a plaintiff such as

Richard needs to show that the proffered reason is "pretexual and

that retaliation was the true reason."            Richard, 296 F. Supp. 3d

at 301 (emphasis added) (quoting Palmquist, 689 F.3d at 71).                    In

short, the finding of pretext did not guarantee Richard a win, and

the district court did not misunderstand the law.

                                       B.

            Richard's remaining arguments fall into two categories:

(1) the district court "failed to consider" certain evidence,

proposed inferences, or arguments raised by Richard; or (2) the

district court erred in its factual findings based on what it did

consider.    We deal with these two categories of argument in turn.




                                     - 13 -
                                 1.

          We address first Richard's various arguments that the

district court failed to consider certain points Richard says it

should have considered.   Richard makes this type of argument in

various versions at least seven times in her opening brief.    But

in arguing that the district court failed "to consider" a point,

Richard makes no claim that the trial judge slept through the

trial.   Rather, what she appears to mean is that the district

court's written opinion did not expressly acknowledge and address

certain points in her favor.

          Federal Rule of Civil Procedure 52 dictates the manner

in which district courts should state the result following a bench

trial.   It requires that the district court "find the facts

specially and state its conclusions of law separately."    Fed. R.

Civ. P. 52(a)(1).   These findings and statements may on occasion

provide a toehold for a successful appeal because they reveal a

clear and consequential error in the trial court's factfinding.

See Benham v. Lenox Sav. Bank, 292 F.3d 46, 48 (1st Cir. 2002)

(reversing a judgment following a bench trial upon a determination

that the court's judgment had been based on a theory offered by

neither party and unsupported by the evidence).

          None of this means, though, that a trial court's findings

of fact need expressly respond like a debate champion to every

evidentiary or factual contention made by the losing side.     See


                               - 14 -
Nevor v. Moneypenny Holdings, LLC, 842 F.3d 113, 119 (1st Cir.

2016).     As the application notes to the Rule's 1946 amendment

state,    "the    judge   need   only   make   brief,   definite,   pertinent

findings and conclusions upon the contested matters; there is no

necessity for over-elaboration of detail or particularization of

facts."    Fed. R. Civ. P. 52(a), advisory committee's note to 1946

amendment.       Rule 52 is "not meant to be applied mechanically," and

where "the district court's decision contains sufficient findings

and reasoning to make plain the basis for its disposition of the

case," we pay little heed to claims that it should have done more.

Valsamis v. González-Romero, 748 F.3d 61, 63 (1st Cir. 2014).

Rather, we consider arguments such as contentions that the trial

court misapplied the law, made plain errors of consequential fact,

failed to make plain the facts and reasoning upon which it chose

to base its conclusion, or rested that conclusion upon a record

insufficient to provide the required support.

             In view of the foregoing, we reject in bulk Richard's

arguments that in one way or another rest only on a complaint that

the trial court's sixty-seven page opinion did not mention or

"failed to address" certain facts and assertions advanced by

Richard.

                                        2.

             Richard marshals her claims of factual error in an effort

to secure the reversal of the district court's finding that RSU 57


                                    - 15 -
lacked retaliatory motive.    "The issue of retaliatory motive . . .

presents   'a   pure   question   of   fact,'   and   the    trial   court's

determination is reviewed under the clearly erroneous standard."

Hazel v. U.S. Postmaster Gen., 7 F.3d 1, 4 (1st Cir. 1993) (quoting

Pullman-Standard v. Swint, 456 U.S. 273, 287–88 (1982)).             We have

made clear that "[f]ollowing a bench trial, an appellate tribunal

is not warranted in substituting its judgment for that of the trial

court. . . . [W]e are not free to reject . . . [the district

court's] findings of fact . . . 'unless, on the whole of the

record, we form a strong, unyielding belief that a mistake has

been made.'"    Foster v. Dalton, 71 F.3d 52, 55 (1st Cir. 1995)

(quoting Cumpiano v. Banco Santander P.R., 902 F.2d 148, 152 (1st

Cir. 1990)).    And "[w]hen the evidence presented at a bench trial

supports plausible but competing inferences, the court's decision

to favor one inference is not clearly erroneous."           Torres-Lazarini

v. United States, 523 F.3d 69, 72 (1st Cir. 2008).

           Richard argues first that the district court erred in

declining to infer that resource considerations motivated RSU 57's

actions.   As Superintendent Davis testified, educating special

needs students can be expensive.       But as the district court noted,

there was no evidence that RSU 57 was suffering from a budgetary

squeeze and no evidence that T.K. and L.P. had unusually expensive

special education needs, while there was evidence that T.K. and

L.P. were in fact ultimately placed in special education programs.


                                  - 16 -
Richard, 296 F. Supp. 3d at 303.        From this, the district court

inferred that it was unlikely that resource concerns motivated

RSU 57's actions.      We cannot deem this inference impermissible,

and thus it was not reversible error for the district court to

make it.

           Richard next argues that the district court "should have

held against RSU 57 the bureaucratic shell game involving who knew

what and who decided what."       She posits, citing Tejada-Batista v.

Morales, 424 F.3d 97, 102 (1st Cir. 2005), that because multiple

individuals   (Principal    Bertinet,   Vice   Principal   Roberts,    and

Superintendent Davis) were involved in sanctioning Richard, the

district court should have taken the so-called "sequence of actors"

approach   and   imputed   each   individual   actor's   motivations    to

RSU 57.    The problem for Richard is that the district court did

precisely this, directing its attention specifically not just to

Superintendent Davis, but also to the "motivation of Principal

Bertinet and Vice Principal Roberts."      Richard, 296 F. Supp. 3d at

304.   Looking first at the time period prior to the December 8

meeting, the court found Principal Bertinet and Vice Principal

Roberts to have been "collaborative and supporting" in dealing

with Richard.    Id.   This was at a time when they already well knew

of complaints and advocacy by Richard on behalf of students with

disabilities. Only after the December 8 meeting, when they learned

of Superintendent Davis's animus toward Richard, did they begin


                                  - 17 -
behaving adversely toward Richard.                  Most reasonable people would

conclude from this chronology that Richard's complaints raised no

retaliatory ire in the two administrators. Rather, as the district

court found, they changed their behavior to follow their boss's

"lead."    Id.

            The district court also found that after learning of

Superintendent Davis's wish "to find a way to get Ms. Richard to

resign,"    the       two   administrators         thereafter        "engage[d]     in   a

retributive campaign against Ms. Richard."                     Id.   In so doing, they

were "doing the perceived bidding of Superintendent Davis."                          Id.

Emphasizing the point, the district court expressly found that

Principal Bertinet and Vice Principal Roberts "were following

Superintendent Davis's lead in exerting intense pressure on Ms.

Richard from the time of the December 8 meeting to her April 2015

leave "of absence and beyond."              Id.

            As the district court explained, Principal Bertinet and

Vice Principal Roberts not only took actions directed at Richard,

but also at victims T.K. and L.P.                  The district court chronicled

these     events,      aptly    observing        that    the     two   administrators

subsequently went "beyond merely following the superintendent's

wishes."    Id.

            Our       dissenting    colleague        seems     to    read   this    later

observation      as    meaning     that    the     two   administrators      undertook

retributive      actions       against     Richard       for    reasons     other    than


                                          - 18 -
attempting to please Superintendent Davis.                But the district court

neither said nor even implied such.                 Indeed, the examples the

district   court       cited   of   the   two    administrators    going    beyond

Superintendent Davis's direction -- shifting blame from T.K. to

B.D., minimizing T.K.'s inappropriate behavior, and contradicting

tape recorded statements concerning a meeting with B.D.'s parents

-- all concern hostility toward "the children who were victims of

T.K. and L.P.'s aggressive conduct." Id. Simply put, the district

court plainly found that Principal Bertinet and Vice Principal

Roberts consistently acted harshly toward Richard after December

8 for a single reason:         to do Superintendent Davis's bidding.            And

the chronology strongly -- and certainly sufficiently -- supported

this factual finding.

           So     we     summarize:        The    district     court     carefully

considered      and    expressly     discussed      the    motivations     of    the

principal and vice principal, made clear why the chronology belied

retaliation as the more likely motive, and expressed uncertainty

as to what was otherwise going on concerning the whole situation

with the children in question.             Based on the record, we see no

clear error in this analysis.

           Richard's final argument is that because the district

court found RSU 57's explanation -- via Superintendent Davis --

for its actions to be pretextual, the court should have inferred

that the true reason must have been retaliatory animus.                         This


                                      - 19 -
argument is functionally the same as the contention, rejected

supra, that if a district court finds pretext, it necessarily must

find retaliatory motive.   Though such an inference is permitted,

it is not required, and the district court's failure to draw

Richard's preferred inference was not clear error.

                               III.

           The bottom line is this:    The district court's sixty-

seven page opinion sets forth more than sufficient findings and

reasoning to make plain the basis for its disposition of the case.

Specifically, it explains in detail why the court was not persuaded

that RSU 57 acted with animus prompted by Richard's advocacy for

several students with disabilities.    And in so doing, it properly

stated and applied the law, and did not clearly err in the facts

it found or the inferences it drew.    This is what happens when a

party tries well, but loses, a case that could have gone either

way.   We therefore affirm the judgment.



                   -Dissenting Opinion Follows-




                              - 20 -
               TORRUELLA,      Circuit    Judge    (Dissenting).      Despite     the

formidable standard of review, see Anderson v. City of Bessemer

City,    470    U.S.   564,    573    (1985)   (stating   that   "a     finding   of

intentional discrimination is a finding of fact," to which we apply

the clear error review), where we have a "strong, unyielding belief

that a mistake has been made," it is our duty to reverse or remand,

Powell v. Alexander, 391 F.3d 1, 7 (1st Cir. 2004) (quoting Fed.

Refinance Co. v. Klock, 352 F.3d 16, 27 (1st Cir. 2003)).                  I am of

the firm belief that this is that rare case in which the district

court's finding that there was no retaliatory animus was clearly

erroneous.       In light of the supported facts established by the

district court, the weight of the evidence merited a closer look

at the motivation of crucial actors in this story -- namely that

of the WES administration.            Therefore, I respectfully dissent.

               The district court found the "heart of the case" to be

the December 8, 2014 meeting, the site of the first identified

adverse employment action.            Richard v. Regional Sch. Unit 57, 296

F. Supp. 3d 274, 278 (D. Me. 2017).               The district court found that

"Superintendent        Davis    ran    the   District,"    and   that    Principal

Bertinet and Vice Principal Roberts, the school's administrators,

were simply "doing the perceived bidding of Superintendent Davis."

Id.     at   304-05.        Accordingly,       the    district   court     imputed

Superintendent Davis's motivation to all parties that took adverse


                                         - 21 -
employment actions against Richard.                 But, contradicting its own

findings,      the   district        court   also     noted     that    the    school

administration       took    adverse      employment       actions      without    the

Superintendent's direction.             In particular, the district court

"[found] that Principal Bertinet and Vice Principal Roberts were

following    Superintendent          Davis'[s]      lead   in   exerting      intense

pressure on Ms. Richard from the time of the December 8, 2014

meeting to her April 2015 leave of absence and beyond."                        Id. at

304.       But     later     recognized      that     "[t]he     actions      by   WES

administration [went] beyond merely following the Superintendent's

wishes."    Id.

            The majority reads the latter district court statement

as limited to Principal Bertinet's and Vice Principal Roberts'

actions "against the children who were victims of T.K. and L.P.'s

aggressive conduct."           Id.     However, a careful reading of the

district court's order leads us to conclude that Richard was also

subject to such actions "beyond" the Superintendent's directions.

First,   the      district    court     clearly      stated     that    "unsupported

positions" were taken against both Richard, and T.K. and L.P.'s

victims.       Id.   ("[T]he    troubling       aspect     of   their    joining    in

[Superintendent Davis's] campaign against Ms. Richard is that it

led them to take unsupported positions against not only Ms. Richard

but also against the children who were victims of T.K. and L.P.'s

aggressive conduct." (emphasis added)).               Given the context of this


                                       - 22 -
statement, the term "unsupported positions" refers to the mental

state that set the foundation for Principal Bertinet's and Vice

Principal Roberts' actions "beyond . . . the Superintendent's

wishes,"    as    the   district   court    described   them    immediately

following examples of their actions taken against T.K. and L.P.'s

victims.    Id.3    Second, the district court explicitly included

Richard, along with one of T.K. and L.P.'s victims -- B.D., as one

of the actors in the uncertain events it recognized unfolded in

RSU 57.     Id. at 304-05 ("In sum, the evidence suggests that

something   was    going   on   within   the   administration   of   RSU   57

concerning T.K., L.P., B.D., and Charlene Richard, but the Court

is not sure what.").       Thus, if the uncertain activity in RSU 57

was related to the WES administration's actions "beyond" the

Superintendent's direction against T.K. and L.P.'s victims, as the


3  To support its conclusion that the school administration took
no action beyond Superintendent Davis's wishes against Richard,
the majority points out the district court's omission of a specific
example, in this particular part of its order, of a hostile act by
Principal Bertinet and Vice Principal Roberts against Richard.
See Maj. Op. 11 (citing Richard, 296 F. Supp. 3d at 304). However,
as is discussed in detail below, Principal Bertinet responded in
a manner hostile towards Richard in the events surrounding two of
the three examples provided by the district court and alluded to
by the majority. Despite playing no role in suggesting that B.D.
was the culprit, Principal Bertinet sought to blame Richard for
B.D.'s trip to the principal's office following the incident
involving T.K. and a female classmate in which T.K. had hit the
girl, Richard, 296 F. Supp. 3d at 295-96. Furthermore, during the
tape recorded meeting, Principal Bertinet openly lied to B.D.'s
parents by stating that Richard had failed to report to her that
B.D. was being targeted, id. at 297-98, thereby implying to the
parents that Richard was not properly supervising her students.


                                   - 23 -
majority seems to concede, it follows that Richard was also subject

to such unsupported, and in her case adverse, action.                       Therefore,

the   district     court    should        have,       but   did   not,   consider   the

Principal's and Vice Principal's motivations separate and apart

from the Superintendent's.           This was clearly erroneous in light of

the district court's own findings.

             We commonly look to certain indicators such as temporal

proximity,    awareness         of   the    protected         conduct,   comments   by

decision makers, and differential treatment, as circumstantial

evidence to guide a causation analysis.                     See Mesnick v. Gen. Elec.

Co., 950 F.2d 816, 824 (1st Cir. 1991) ("[A] plaintiff should not

be required to produce 'smoking-gun' evidence before prevailing in

a discrimination suit. There are many veins of circumstantial

evidence   that    may     be    mined     by     a    plaintiff    to   this   end.");

Garayalde-Rijos v. Municipality of Carolina, 747 F.3d 15, 25 (1st

Cir. 2014)) ("'[T]emporal proximity' is merely one factor relevant

to causation . . . 'reinforced by other evidence.'" (quoting

Trainor v. HEI Hospitality, LLC, 699 F.3d 19, 28 (1st Cir. 2012)));

Alvarado v. Donahoe, 687 F.3d 453, 459 (1st Cir. 2012) (stating

that knowledge is required for a retaliatory motive).                       An analysis

of    causation,    however,         is    one        where    "[c]ontext    matters."

Planadeball v. Wyndham Vacation Resorts, Inc., 793 F.3d 169, 178

(1st Cir. 2015) (quoting Burlington Northern & Santa Fe Ry. v.

White, 548 U.S. 53, 69 (2006)).


                                          - 24 -
              The concrete evidence in this case shows that, even if

Superintendent Davis was not aware of Richard's advocacy at the

time of the December 8, 2014 meeting, Principal Bertinet and Vice

Principal Roberts both had knowledge of Richard's actions and took

adverse employment actions against this exemplary kindergarten

teacher.      Superintendent Davis's hostile treatment at the December

8 meeting may have been the first, but was most certainly not the

only, adverse employment action taken.                Yet, the district court's

causation analysis only considered the temporal proximity between

Richard's filing of the SAT requests for T.K. and L.P. and the

December 8 meeting.

              The hostility by the school administrators continued

throughout the spring of 2015 without proven command or knowledge

by Superintendent Davis.                In the district court's own words,

"Principal Bertinet and Vice Principal Roberts began micromanaging

Ms. Richard's classroom, criticizing her asserted failures, and

building      a    case    for   administrative       sanction    by    reprimands."

Richard, 296 F. Supp. 3d at 279.                The hostility was most evident

in   Principal       Bertinet's     misleading        expressions      to   Richard's

detriment. For instance, when Richard went to Principal Bertinet's

office   to       inform   her   that    T.K.   had   hit   a    female     classmate,

Principal Bertinet "sought to deflect blame from T.K. to B.D."

Id. at 304.         When B.D.'s parents inquired of the administration

about why B.D. was being pulled out of the classroom and whether


                                         - 25 -
B.D. was being targeted by the administration, Principal Bertinet

told them that it was "simply a friendly check-in" and attempted

to blame Richard for miscommunication, despite no evidence of such.

See id. at 295-96.     In another incident, when Principal Bertinet

emailed B.D.'s parents to alert them that T.K. stepped on B.D.'s

hand, Bertinet insisted it was an accident despite Richard's report

to the contrary.     Id. at 296.    More overtly, at the tape-recorded

meeting with B.D.'s parents on April 3, 2015, Principal Bertinet

openly lied to B.D.'s parents that "[t]hat [was] the first time

that Ms. Richard ha[d] said that she felt that [B.D.] was being

targeted," despite the fact that Richard had reported this bullying

to the administration the previous day.         See id. at 297-98.    Three

days after this meeting, Principal Bertinet placed Richard on a

Corrective Action Plan.      Id. at 304.        These incidents occurred

five months after the December 8 meeting.          The motivation of the

WES administration is therefore of crucial importance to the

ultimate causation analysis of retaliation in this case.

           Despite   these   and    other   independent    actions   by   the

school's   administrators,    the    district   court     inexplicably    and

summarily ended its analysis into the motivation of the WES

administration by stating "the evidence suggests that something

was going on within the administration of RSU 57 concerning T.K.,

L.P., B.D., and Charlene Richard, but the Court is not sure what.

The Court turns to Superintendent Davis."           Id. at 304-05.        The


                                   - 26 -
district court did not consider the temporal proximity of these

school administrator's adverse employment actions to Richard's

advocacy, but instead only focused on the temporal proximity of

the December 8 meeting.        While the administration's actions may

only be circumstantial evidence of a retaliatory animus, the

temporal proximity between Richard's advocacy and those actions

can and should have been used in the district court's causation

analysis.   Sánchez-Rodríguez v. AT&T Mobility P.R., Inc., 673 F.3d

1, 15 (1st Cir. 2012) ("Very close temporal proximity between

protected activity and an adverse employment action can satisfy a

plaintiff's burden of showing causal connection . . . ."); see,

e.g., DeCaire v. Mukasey, 530 F.3d 1, 21 (1st Cir. 2008) (using

temporal proximity to find factual error in court's ultimate

conclusion regarding causation).

            Further, in its causation analysis, the district court

erroneously    considered      only   whether    Superintendent     Davis's

pretextual explanation for his behavior provided evidence of a

retaliatory    motive,   but    failed     to   consider   the   pretextual

explanation that the school administration put forth.            See Zapata-

Matos v. Reckitt & Colman, Inc., 277 F.3d 40, 45 (1st Cir. 2002)

("[D]isbelief of the reason may, along with the prima facie case,

on appropriate facts, permit the trier of fact to conclude that

the employer had discriminated.").          Although the district court

did mention RSU 57's proffered motivation at the very initial prima


                                  - 27 -
facie stage, it wholly failed to review the administration's

justification for their actions when considering whether Richard

met her ultimate burden of persuasion.         Compare Richard, 296 F.

Supp. 3d at 300-01 (explaining that the administration articulated

a nondiscriminatory reason for its actions), with id. at 301-02

(looking   only    to   Superintendent    Davis's   motivations   in   its

causation analysis).     As illustrated above, Principal Bertinet and

Vice Principal Roberts both participated in and influenced the

adverse employment actions, and thus their motivation -- and

whether    their   proffered   nondiscriminatory     justification     was

pretextual -- was also relevant and should have been analyzed by

the district court.       See, e.g., Webber v. Int'l Paper Co., 417

F.3d 229, 236 (1st Cir. 2005) (analyzing animus of each participant

that influenced an adverse employment action); Cariglia v. Hertz

Equip. Rental Corp., 363 F.3d 77, 85-88 (1st Cir. 2004) (stating

that the district court should have reviewed the animus of an

employee that may have manipulated the information provided to the

ultimate decisionmakers).      The district court's failure to do so

was clearly erroneous.     An analysis of RSU 57's proffered reasons

for its actions may have supported Richard's argument that the

adverse actions were motivated by her advocacy.         See Kosereis v.

Rhode Island, 331 F.3d 207, 214 (1st Cir. 2003) ("Evidence that

the employer's stated reasons for its actions are pretextual can

be sufficient to show improper motive.").


                                 - 28 -
             When   the   record    is    reviewed   in   its   entirety,   the

retaliatory inference is apparent.             The more incidents Richard

reported to the school administration, the more the administration

intensified the pressure that it exerted on Richard instead of

providing the requested aid for the students for whom Richard was

advocating.    See DeCaire, 530 F.3d at 21 (lack of hostility prior

to protected conduct supports inference of retaliatory animus).

The   district       court's       failure    to     consider    the   school

administrator's     motivations      to   determine    whether    Richard   had

proven her retaliation claims was clearly an error.

             Kindergarten teachers are the first in line for the

identification and proper treatment of children with disabilities

within our school systems.           The education system, parents, and

society as a whole rely on those kindergarten teachers to advocate

for children's needs and to create a safe environment in the

classroom.    Teachers, however, cannot be expected to shoulder this

weight alone, but need the support of our school systems to help

those students develop essential skills that they will employ for

the rest of their lives.       Richard was an exemplary teacher, and in

some instances "the only positive force" in these children's lives.

Richard, 296 F. Supp. 3d at 296.             RSU 57 not only unjustifiably

disrupted her efforts to provide support for the children, but

waged a campaign of adverse employment actions in retaliation.               I

am therefore left with a "definite and firm conviction that a


                                     - 29 -
mistake has been committed." United States v. United States Gypsum

Co., 333 U.S. 364, 395 (1948).   I respectfully dissent.




                             - 30 -
