Cookson v. Brewer School Dept.

• Decision Date: 02 June 2009
• Docket Number: Docket: Pen-07-706
• Citation: 2009 ME 57,974 A.2d 276
• Parties: Kelly Jo COOKSON v. BREWER SCHOOL DEPARTMENT et al.
• Court: Maine Supreme Court

974 A.2d 276

2009 ME 57

Kelly Jo COOKSON v. BREWER SCHOOL DEPARTMENT et al.

Docket: Pen-07-706

Supreme Judicial Court of Maine.

Argued: May 15, 2008.

Decided: June 2, 2009.

Arthur J. Greif, Esq. (orally), Andrea V.W. Wan, Esq., Julie D. Farr, Esq., Gilbert & Greif, P.A., Bangor, ME, for Kelly Jo Cookson.

Melissa A. Hewey, Esq. (orally), Drummond Woodsum & MacMahon, Portland, ME, for Brewer School Department and Daniel Lee.

Panel: SAUFLEY, C.J., and CLIFFORD, ALEXANDER, LEVY, and GORMAN, JJ.

SAUFLEY, C.J.

[¶ 1] Kelly Jo Cookson appeals from a summary judgment entered in the Superior Court (Penobscot County, Cuddy, J.) in favor of the defendants, Brewer School Department and Superintendent Daniel Lee, on Cookson's complaint alleging (1) sexual orientation employment discrimination, in violation of the Maine Human Rights Act, for the school's failure to rehire her as a high school softball coach, see 5 M.R.S. §§ 4571-4572 (2008), and (2) slander per se regarding certain statements made by Lee to parents who supported Cookson. We affirm in part and vacate in part.

I. BACKGROUND

[¶ 2] Viewing the evidence in the light most favorable to Cookson as the nonprevailing party, see Dyer v. Dep't of Transp., 2008 ME 106, ¶ 14, 951 A.2d 821, 825, the following facts are supported in the summary judgment record.

[¶ 3] Cookson was the head coach of the Brewer High School varsity softball team from 1993 until 2005. During her tenure, the team was considered to be successful and made the playoffs in all but one of those years. Cookson is a lesbian.

[¶ 4] During the 2005 season, a player on Cookson's team quit, and that player's mother made a complaint to Betsy Webb, who was then the superintendent. Among other things, the complaint accused Cookson of subjecting her players to verbal abuse and hazing, and specifically referenced an incident before the 2005 season during which players were brought to a farm where, in Cookson's presence, they touched and walked in sheep feces. Webb investigated the allegations contained in the complaint and discovered that a similar incident had occurred prior to the 2004 season. As a result of her investigation, Webb issued a letter of reprimand to Cookson.

[¶ 5] Lee succeeded Webb as superintendent for the Brewer School Department in September 2005. The following month, Lee received a notice of tort claim from the same family that had made the previous complaint to Webb.¹ The tort claim was based on many of the same allegations as that complaint, and referenced the sheep farm incidents in 2004 and 2005. Immediately after receiving the notice of tort claim, Lee met with Cookson and the athletic director, Dennis Kiah. During that meeting, Cookson told Lee that she would not resign, and he replied, "We're not even thinking along those lines." Also at that meeting, Cookson brought to Lee's attention alleged hazing incidents on other teams. While Lee was considering whether to recommend Cookson as coach for the 2006 season, he conducted an investigation into the tort claim and learned about the earlier complaint and resulting letter of reprimand.²

[¶ 6] At some point before he made his hiring recommendation to the School Committee in late January or early February, Lee was made aware of Cookson's sexual orientation. During that time, Lee also met with parents who expressed support for Cookson. Lee told those parents that he had knowledge of items in Cookson's personnel file that he could not share with them and that Cookson may not have been entirely truthful with them. Lee also told them about a staff member at another school where he had worked who had been involved in a nudist colony and implied that there were similarities to Cookson's situation.

[¶ 7] Lee ultimately decided not to nominate Cookson as the head softball coach for the 2006 season. Lee asserts that this decision was based primarily on Cookson's involvement in hazing activities in 2004 and 2005, in violation of the school's anti-hazing policy, and Lee's belief that Cookson was not providing a "balanced" sports program for the team. Lee nominated Skip Estes to replace Cookson. Estes, who had been the junior varsity softball coach for one year while Cookson was the head coach, and who had coached summer softball for several years, is married to a woman. The School Committee accepted Lee's recommendation and hired Estes as the head softball coach.

[¶ 8] When Cookson's contract was not renewed, she filed a complaint in the Superior Court alleging (1) employment discrimination, in violation of sections 4571 and 4572 of the MHRA, for the School Department's failure to rehire her as a high school softball coach, and (2) slander per se for Lee's statement to parents that there were things in Cookson's personnel file that he could not discuss with them. After filing an answer, the School Department and Lee jointly moved for summary judgment and the parties each filed statements of material facts with references to supporting evidence pursuant to M.R. Civ. P. 56(h).

[¶ 9] The court entered summary judgment in favor of the School Department and Lee on both the discrimination and slander per se claims. For the purposes of its summary judgment analysis, the Superior Court accepted that Cookson had demonstrated the elements of a prima facie case of discrimination and determined that the School Department and Lee had articulated a legitimate, nondiscriminatory reason for declining to rehire Cookson. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). The court then concluded, viewing the evidence in Cookson's favor, that she had failed to present sufficient evidence that the stated reason she was not rehired was a pretext for illegal discrimination based on her sexual orientation. See id. at 804-05, 93 S.Ct. 1817.

[¶ 10] Regarding the slander per se count of Cookson's complaint, the court determined that the statement Lee had made regarding Cookson's personnel file was true and therefore not defamatory because he was required to keep employee information confidential, including evaluations of employee performance, complaints, and charges of misconduct. Cookson timely appealed from the judgment.

II. DISCUSSION

[¶ 11] We review a grant of summary judgment de novo, viewing the facts and any inferences that may be drawn from them in the light most favorable to the nonprevailing party to determine if the statements of material facts and referenced record evidence generate a genuine issue of material fact. Dyer, 2008 ME 106, ¶ 14, 951 A.2d at 825. "An issue is genuine if there is sufficient evidence supporting the claimed factual dispute to require a choice between the differing versions; an issue is material if it could potentially affect the outcome of the matter." Brown Dev. Corp. v. Hemond, 2008 ME 146, ¶ 10, 956 A.2d 104, 108.

[¶ 12] Although no longer an extreme remedy, summary judgment is "not a substitute for trial." Arrow Fastener Co. v. Wrabacon, Inc., 2007 ME 34, ¶ 18, 917 A.2d 123, 127. Thus, "[e]ven when one party's version of the facts appears more credible and persuasive to the court, a summary judgment is inappropriate if a genuine factual dispute exists that is material to the outcome," in which case "the dispute must be resolved through fact-finding," regardless of the nonmoving party's likelihood of success. Id. ¶ 17, 917 A.2d at 126-27.

A. Employment Discrimination Claim

[¶ 13] The Maine Human Rights Act provides that it is illegal for an employer to fail or refuse to hire a person based on that person's sexual orientation:

Unlawful employment discrimination

1. Unlawful employment. It is unlawful employment discrimination, in violation of this Act, except when based on a bona fide occupational qualification:

A. For any employer to fail or refuse to hire or otherwise discriminate against any applicant for employment because of ... sexual orientation....

5 M.R.S. § 4572. Sexual orientation is defined as "a person's actual or perceived heterosexuality, bisexuality, homosexuality or gender identity or expression." 5 M.R.S. § 4553(9-C) (2008). The Act provides that "a person who has been subject to unlawful discrimination may file a civil action in the Superior Court against the person or persons who committed the unlawful discrimination." 5 M.R.S. § 4621(2008).

[¶ 14] Federal law guides our construction of the MHRA. Currie v. Indus. Sec., Inc., 2007 ME 12, ¶ 13, 915 A.2d 400, 404. Accordingly, we apply the burden-shifting analysis first described in McDonnell Douglas, 411 U.S. at 802-05, 93 S.Ct. 1817. See Doyle v. Dep't of Human Servs., 2003 ME 61, ¶ 14, 824 A.2d 48, 53-54. First, the employee must establish a prima facie case by demonstrating that (1) the employee is a member of a protected class; (2) the employee applied for and was qualified for the job that the employer was seeking to fill; (3) the employee was not hired for the job; and (4) the job was later filled by a person who was not in the protected class. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993); McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817. If the employee makes this showing, a presumption of illegal discrimination is established, and the burden shifts to the employer to produce evidence that the adverse employment action was taken for a legitimate, nondiscriminatory reason. St. Mary's Honor Ctr., 509 U.S. at 506-07, 113 S.Ct. 2742; McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817. If the employer produces such evidence, the presumption of discrimination is rebutted, and the inquiry shifts to the ultimate burden of persuasion on the issue of intentional discrimination, which remains at all times with the employee. St. Mary's Honor Ctr., 509 U.S. at 507-08, 113 S.Ct. 2742. To meet this burden, the employee must demonstrate that the reason asserted by the employer was a pretext and that the true reason was illegal discrimination. Id.

[¶ 15] Cookson...