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Dicentes v. Michaud, part 2

III. Respondeat Superior
	[¶11]  DiCentes argues that the East Millinocket School Committee is
liable in respondeat superior for WPA violations committed by its agents,
Ryder and Michaud.  Under the doctrine of respondeat superior, liability for
tortious acts of a servant may be imputed to the master,{7} see W. Page Keeton
et al., Prosser and Keeton on the Law of Torts §§ 69, 70, at 499, 501 (5th
ed. 1984), and the acts of an agent may be imputed to the principal.  See
Bonk v. McPherson, 605 A.2d 74, 78 (Me. 1992).  The concept of
respondeat superior has caused much debate in the courts in the context of
employment discrimination claims.{8} 
	[¶12]  Here, however, the answer is found in the explicit language of
the WPA and the uncontested facts before the court.  Section 833(1) of the
WPA provides that "[n]o employer may discharge, threaten or otherwise
discriminate against an employee regarding the employee's compensation,
terms, conditions, location or privileges of employment."  26 M.R.S.A.
§ 833(1) (1988) (emphasis added).  The WPA  defines the term "employer"
in the following manner:
	"Employer
" means a person who has one or more
employees.  Employer includes an agent of an employer and the
State, or a political subdivision of the State.
26 M.R.S.A. § 832(2) (1988) (emphasis added).  Pursuant to the plain
language of these two sections, the discriminatory conduct of an "employer"
encompasses not only the conduct of the employing entity, but also that of
its agents.
	[¶13]  The question therefore is not whether the School Committee,
as DiCentes's employer, can be held responsible for the actions of its agents,
but rather, whether Ryder and Michaud were acting as its agents with
regard to the nonrenewal of her contract.  We conclude that both 
Ryder, as superintendent, and Michaud, as high school principal, were agents 
of the Committee when they undertook the actions complained of here.{9}  They
each made recommendations as required by school policy; they forwarded
those recommendations to the next place in the chain of decision making;
they did so in the context of the ordinary responsibilities of their positions
with the School Committee.  Accordingly, as agents of DiCentes's employer,
if either Ryder or Michaud violated the WPA, those violations, pursuant to
the plain language of sections 833(1) and 832(2), constitute actions for
which the School Committee will be responsible under the Act.
IV. Ryder's Actions
	[¶14]  To prevail on a claim of unlawful retaliation pursuant to the
WPA, an employee must show (1) that she engaged in activity protected by
the WPA, (2) that she experienced an adverse employment action, and (3)
that a causal connection existed between the protected activity and the
adverse employment action. See Bard v. Bath Iron Works Corp., 590 A.2d
152, 154 (Me. 1991).  The trial court appropriately analyzed Dicentes's WPA
claims through the use of the shifting burdens analysis articulated in
McDonnell Douglas v. Greene, 411 U.S. 792 (1973).{10}  We review the trial
court's factual findings for clear error, see M.R. Civ. P. 52(a), and will set
aside such a finding only where there is no competent evidence in the
record to support it.  See Calaska Partners, Ltd. v. Corson, 672 A.2d 1099,
1104 (Me. 1996).
	[¶15]  The trial court found that DiCentes met her burden of proving
that she engaged in an activity protected by the WPA when she contacted
officials in state government to report what she reasonably believed to be a
health and safety violation created by ventilation problems in the high
school's chemistry lab.  See 26 M.R.S.A. § 833(1)(B).  It was undisputed that
DiCentes's contract was not renewed, and that her contacts with the State
agencies were made before the decision was made not to renew her
contract.  Therefore, DiCentes met her burden of proof on the first two
prongs of the analysis.
	[¶16]  The question, then, is whether there was a causal connection
between those contacts and DiCentes's nonrenewal.  The employee at all
times retains the final burden of persuasion on the issue of causation.  See
Maine Human Rights Comm'n, 408 A.2d at 1262 (applying similar approach
to sex discrimination under the MHRA).  Proof of conduct protected by the
WPA, however, followed in close proximity by an adverse employment
action, gives rise to an inference that a causal connection is established; the
employer, then, will be required to produce some probative evidence to
demonstrate a nondiscriminatory reason for the adverse employment action. 
See Wytrwal v. Saco School Bd., 70 F.3d 165, 171-74 (1st Cir. 1995); Maine
Human Rights Comm'n, 408 A.2d at 1262.  Once that evidence has been
offered, the burden remains with the employee to persuade the factfinder
that there was, in fact, a causal connection between the protected activity
and the adverse employment action.
	[¶17]  The trial court found that DiCentes did not satisfy her ultimate
burden in this case; DiCentes simply failed to persuade the factfinder that
there was a causal connection between her protected activities and the
nonrenewal of her contract.  See Fennell v. First Step Designs, Ltd., 83 F.3d
526, 535-36 (1st Cir. 1996).  Although DiCentes recognizes that her
employer presented a legitimate reason for nonrenewal, she argues that the
court should have been persuaded that those reasons were pretextual.  The
court, however, accepted Ryder's testimony that his reasons for
recommending nonrenewal of DiCentes's contract were not related to her
contacts with the State agencies regarding the ventilation problem. 
DiCentes failed to persuade the court that her nonrenewal was caused either
by Michaud's unfavorable recommendation or by any retaliatory scheme to
eliminate her position through the reduction-in-force.  Indeed, the court
explicitly found that Ryder's decision not to nominate DiCentes for contract
renewal, and the School Committee's subsequent action, were based on the
budget considerations of the reduction-in-force, and not on Michaud's
recommendation.  Each of these findings is supported by competent
evidence in the record.  Judging the credibility of witnesses is within the
exclusive province of the factfinder.  McCarthy v. U.S.I. Corp., 678 A.2d 48,
52 (Me. 1996).  In the absence of a causal connection between Michaud's
response to her protected activities and Ryder's recommendation of
nonrenewal, DiCentes's whistleblower claim against Ryder fails.{11}  
	[¶18]  DiCentes also claims that the court erred when it did not find
Ryder's refusal to give DiCentes a letter of recommendation to constitute a
violation of the Whistleblowers' Protection Act.  The refusal to recommend
her for future employment did not affect the compensation, terms,
conditions, location, or privileges of her then existing employment.  See 26
M.R.S.A. § 833(1).  It therefore did not fall within the protection of the Act.
V. Michaud's Actions
	[¶19]  We turn next to Michaud's assertion that the court erred in
finding him liable under the WPA.  Although Michaud's recommendation of
nonrenewal was found to have been made in part based on DiCentes's
contacts with the State, the trial court found that the School Committee's
ultimate decision not to renew DiCentes's contract was unrelated to
Michaud's unfavorable recommendation.  DiCentes again failed to persuade
the court that there was a causal connection between Michaud's
recommendation and the nonrenewal of her contract.  See Bard, 590 A.2d at
154 (requiring plaintiff to show, as part of a prima facie case, "a causal link
between the protected activity and the adverse employment action"). 
Indeed, the court found that "Michaud's [recommendation] in regard to
Ms. DiCentes had nothing to do with her renewal or nonrenewal."{12}
	[¶20]  Moreover, DiCentes failed to persuade the court that Michaud
recommended the elimination of a science position in order to eliminate
DiCentes's position specifically.   Nor did the court find that Michaud's
recommendation to eliminate the science position was in retaliation against
DiCentes or that Ryder's conclusions regarding which positions should be
eliminated were based on a retaliatory recommendation from Michaud.
Notwithstanding DiCentes's argument that the court was compelled to find
that the School Committee "rubber stamped" Michaud's unfavorable
recommendation, the court had evidence before it from which it could have
determined that Ryder made his recommendation independently of
Michaud's recommendation and based it instead on the school's needs in
light of the reduction-in-force.
	[¶21]  The Maine WPA protects employees from actions that adversely
affect the employee's compensation, terms or other conditions of
employment.  See 26 M.R.S.A. § 833(1).  Michaud's recommendation,
although found to have been made in part based on a retaliatory motive, was
also found not to have affected any of the conditions of DiCentes's
employment.  Because DiCentes failed to persuade the factfinder that the
nonrenewal of her contract was caused by Michaud's unfavorable
recommendation rather than the reduction-in-force, the recommendation
standing alone cannot be the basis for liability under the WPA.  Accordingly,
the court erred in concluding that Michaud's actions, unrelated to
DiCentes's nonrenewal, could provide the basis for liability under the Act.
VI. East Millinocket School Committee
	[¶22] DiCentes failed to persuade the court that either the School
Committee or its agents caused her nonrenewal to occur because of
DiCentes's contacts with State agencies regarding the ventilation safety
issue.  Because DiCentes did not suffer a violation of her rights pursuant to
the WPA, we do not reach her argument concerning damages.
	The entry is:
Judgment modified to reflect entry of
judgment in favor of all defendants and as so
modified, affirmed.

Attorneys for the plaintiff: Jeffrey Neil Young, Esq. (orally) N. Kate Werner, Esq. McTeague, Higbee, MacAdam, Case, Watson & Cohen 4 Union Park P.O. Box 5000 Topsham, Maine 04086 Attorney for the defendant: Kevin M. Cuddy, Esq. (orally) Cuddy & Lanham 470 Evergreen Woods Bangor, Maine 0440l
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