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Bain v. Wrend

United States District Court, D. Vermont

November 14, 2018

DAVID BAIN, Plaintiff
TRACY WREND, Defendant.


          Geoffrey W. Crawford, Chief Judge

         Plaintiff David Bain brings this employment case against Tracy Wrend, superintendent of the Lamoille South Supervisory Union ("LSSU"). Plaintiff is a former teacher employed by LSSU. He seeks damages for wrongful termination.

         In his November 23, 2015 amended complaint, plaintiff alleged that Defendant violated his First, Fifth and Fourteenth Amendment rights ("stigma plus") and the state-law claims of wrongful discharge in violation of public policy, the Vermont Fair Employment Practices Act ("VFEPA"), and intentional infliction of emotional distress ("IIED"). (Doc. 3.)

         This court has previously granted Defendant's motion to dismiss in part. The court dismissed the due process- stigma plus claim as well as his claim for wrongful discharge in violation of public policy. The claims which survived the motion to dismiss are claims for First Amendment retaliation (Count I), violation of the VFEPA (Count IV), and the claim for IIED (Count V). (Doc. 22.) These claims are back before the court on Defendant's motion for summary judgment.


         Plaintiff was employed as a teacher at the Peoples Academy in Morristown, Vermont from 1989 until 2014. Peoples Academy serves high school and middle school students from the Morristown area and nearby communities. It is one of seven schools within the LSSU.

         People's Academy Middle Level School hired Defendant Tracy Wrend as a special educator in 1988. She was appointed Superintendent of the LSSU in 2007. In that role, she plays a significant role in the disciplining of teachers. At her deposition, she described it as

[ranging] from everything to supporting Principals in the supervision process, reviewing and gathering information about potential areas where there's a question about teachers' performance that may require discipline. It includes making some disciplinary determinations and making sure that information and a recommendation is provided to the Board when that's an appropriate step in the process.

(Doc. 52-3 at 47.)

         In his 25 years as a high school teacher, Plaintiff taught a variety of subjects including business topics and computer technology. He was also an active member of the Vermont National Education Association ("NEA"). He served as the union representative for other teachers involved in disciplinary proceedings. He served in a variety of leadership roles in the union including as an executive committee member, building representative for teachers accused of disciplinary violations, union treasurer, and delegate to regional union meetings. He served for at least 10 years on the Grievance Committee.

         In the course of discovery in this case, Plaintiff has described his conviction that Defendant Wrend treats older teachers and staff members unfairly. He identified several teachers whom he believes she forced out of school employment. He believes she concealed several incidents because they could reflect badly on the school administration. His dissatisfaction with Defendant Wrend also has origins in his belief that she mishandled the Shaun Bryer incident in which an elementary school teacher left employment at one of the LSSU schools for a job in another school district and was later convicted of sexual abuse of students at LSSU. It is safe to conclude that by 2014, Plaintiff was known to be a vocal critic of Ms. Wrend's leadership.

         In February 2014, Plaintiff and union president Barbara Brody invited other union members to his classroom for a private meeting. At the meeting, he addressed his concerns and criticisms of Defendant Wrend. He states that he "spoke out against and laid out the pattern of abuse, targeting and bullying of the Superintendent." (Doc. 52-2 at 15.) In response, as he describes it, "[t]o a person, everyone at the meeting expressed reluctance and then unwillingness to address these issues because they feared retaliation by the Superintendent." (Id.)

         At his deposition, Plaintiff testified that he advised the other teachers that he was considering running for president of the union following Ms. Brody's retirement. (Doc. 47-2 at 25.) He and other members of the Executive Committee discussed the possibility of a no-confidence vote against Superintendent Wrend. (Id.) According to Plaintiff, the other members of the Executive Committee were too intimidated by Superintendent Wrend to support a no-confidence vote even though they believed it to be appropriate. (Id.)

         Plaintiff attributes the professional discipline he experienced during the spring and summer of 2014 to retaliation by Defendant Wrend against him for the views he expressed at the meeting in February 2014.

         In the spring of 2014, Plaintiff was the subject of discipline by the school administration for failing to maintain appropriate professional boundaries with a student, failing to comply with the mandatory reporting requirement for a potential incident of abuse, dishonesty, insubordination and communicating inappropriately with a colleague. (See Id. at 15-18.) The facts underlying these proceedings have two distinct aspects. After allegations surfaced that another teacher had struck a student on the arm, Plaintiff was investigated for failing to report the incident. The other teacher was not disciplined because the incident was not very serious. The more significant incident concerned allegations of favoritism and improper treatment extended to a student who was a close friend of Plaintiff s daughter, also a student at the school. The friend was permitted to attend Plaintiffs study hall in company with Plaintiffs daughter and received other signs of favor and special status from Plaintiff Plaintiff was accused of "grooming" his daughter's friend by treating her in a familiar, unprofessional manner.

         Plaintiff did not contest these alleged violations through the grievance process. Instead, he accepted a 10-day suspension without pay and signed a "Last Chance Agreement" in which he waived his right to contest termination in the case of a future violation. (Id. at 16-18.)

         In the summer of 2014, during the holiday, Plaintiff engaged in a casual conversation with a student in a grocery store in which he disclosed the name of the student involved in the "grooming" incident. The disclosure was a violation of student confidentiality. Under the terms of the Last Chance Agreement, his employment was terminated for this conduct in August 2014. The same conduct resulted in a public reprimand issued by the Vermont Agency of Education, which is the Vermont licensing authority for teachers. He did not contest either the termination of his employment or the licensure proceeding.

         Plaintiff now denies that he committed the violations which resulted in the Last Chance Agreement. In his view, the discipline he received, including the 10-day suspension, was motivated by Superintendent Tracy Wrend's anger about statements he made at an informal meeting of members of the Executive Committee of the teacher's union on February 24, 2014.

         Plaintiff was also accused of personal use of a school camera. This matter was quickly resolved and did not result in any discipline.

         Plaintiff believes that he was targeted for discipline by Defendant because he hosted the meeting and because he expressed interest in becoming the next union president. (Id. at 25-26.) He does not know whether Superintendent Wrend learned about the meeting and his role in it, but he suspects that ...

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