Cookson v. Brewer Sch. Dep't

STATE OF MAINE SUPERIOR COURT

PENOBSCOT, ss. CIVIL ACTION

DOCKET NO. CV -~-2~3

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KELLY COOKSON, FILE O \.;lQ ~f\, I L..

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Plaintiff ~l'iU

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v. PEN 0 8Seb Teo UN T'PtCISION and ORDER

BREWER SCHOOL DEPAR )

DAVID LEE, )

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Defendants )

FEB () 6 2008

Pending before the Court is Defendants' Motion for Summary Judgment.

BACKGROUND

As this Court reads it, M.R. Civ. P. 56 contemplates a summary proceeding. That

is, the Defendant concisely shows the undisputed facts and applies the law to them, and

the Plaintiff responds by showing both the' disputed' facts and, as importantly, the facts

which if put in evidence, would support recovery for the Plaintiff. Curtis v. Porter, 2001

ME 158, 784 A.2d 18. 1

Plaintiff, Kelly Cookson, brought a two-count complaint. In Count 1, she alleges

that Defendant, Dr. Daniel Lee, Superintendent of Schools for the Brewer School

Department, did not re-hire her as a softball coach because of her gender/sexual

I M.R. Civ. P. 56(h)(1) and (2) require a "separate, short and concise statement of material facts by both

sides." Material facts are those that have the potential to affect the outcome of the suit. Bay View Bank,

N.A. v. Highland GolfMortgagees Realty Trust, 2002 ME 178, , 9,814 A.2d 449, 452. The Law Court has

noted that when, as here, the parties submit unnecessarily long, repetitive or otherwise convoluted

statements of material facts that fail to address the purpose of the rule, the court has the right to disregard

the statement of facts or deny the Motion solely on that ground. Stanley v. Hancock County Comm'rs,

2004 ME 157, "27-29,864 A.2d 169, 179. The parties should take note.

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orientation; therefore, discriminating against her. Ms. Cookson further alleges that the

Brewer School Department elected to replace her with a less qualified, heterosexual

coach. Defendants deny these allegations and respond that the failure to re-hire was

based on non-discriminatory reasons.

Count 2 of the Complaint alleges slander per se based on a statement allegedly

made by Dr. Lee. The Plaintiff alleges that Dr. Lee stated to parents, Bill and Sharon

Risser, as well as a number of other unknown individuals, that "he knew things about

Kelly that [he could not] share publicly." (Pl.'s Complaint ~ 33.) This statement, the

Plaintiff argues, harmed her professional career because it implies that Plaintiff

committed improper acts. Such a statement therefore, constitutes slander per se. (Id. ~

39-40.) Defendants deny that Dr. Lee made the statement to the Risser's or to others as

alleged by the Plaintiff. They claim that Dr. Lee told only the Rissers that there was

"personnel information about Kelly Cookson that he could not, by law, divulge to them."

(Defendants' Statement of Material Facts "DSMF" ~ 80.)

DECISION

A. COUNT 1: Human Rights Violation Claim

Plaintiff alleges that in violation of 5 M.R.S.A. § 4571 and 4572 of the Maine

Human Rights Act, the Defendants discriminated against her because of her sex and/or

sexual orientation. There is no question that the Plaintiff was not hired/re-hired as the

girls' softball coach for Brewer High School and suffered an adverse employment action.

Plaintiff has not presented direct evidence of discriminatory animus to support her claims

of violation of the Maine Human Rights Act. Instead, Plaintiff relies on circumstantial

evidence of discrimination which requires the Court to follow the evidentiary analysis

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found in McDonnell Douglas Corp. v Green, 411 U.S. 792, 802-805 (1973) and applied

in Maine courts in Maine Human Rights Commission v. City ofAuburn, 408 A.2d 1253,

1261-62 (Me. 1979) and more recently in Doyle v. Department ofHuman Services, 2003

ME 61, 824 A.2d 48.

This analysis requires that the Plaintiff establish a prima facie case of unlawful

discrimination. The Plaintiff has the burden of establishing that she has a disability or is

a member of a protected class. Next, she must establish that she is otherwise qualified

and able to perform the essential functions of the job. Finally, she must show that her

adverse treatment by her employer was based on her protected status. Doyle, 2003 ME

61, ~ 14, 824 A.2d at 54. By carrying this burden the Plaintiff establishes a presumption

of discrimination. Although the burden of persuasion stays with the Plaintiff, the burden

of production "shifts to the Defendant to articulate a legitimate non-discriminatory reason

for the adverse employment action." !d. ~ 15,824 A.2d at 54. After which, the burden of

articulation shifts back to the Plaintiff to demonstrate that the alleged non-discriminatory

reason is only a pretext and that it was the discriminatory reason that brought about the

adverse employment action. !d.

It is not disputed that the Plaintiff is a member of a protected class either by

gender or sexual orientation and that she was the subject of adverse employment action in

not being hired/re-hired. The issue is "why" was she not hired?

Plaintiff puts forth facts supporting her contention that she was qualified for the

job of softball coach in terms of her experience and record. Defendants argue that

Plaintiff was not qualified for the job of softball coach because during her time as coach

the team had a history of hazing. Defendants argue that Plaintiff engaged in or permitted

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team members to engage in hazing practices. (DSMF ~~ 4, 8, 10, 17,22,23,31,33,35,

38,42,45,46,83 & 84.) Plaintiff alleges, and it is uncontested, that she was an

excellent and successful girls' softball coach at Brewer High School prior to her not

being recommended for re-hire. (Pl.'s Additional Statement of Material Facts ~~ 86-89.)

Plaintiff, however, does not dispute the essence of the hazing facts. (Pl.'s Response to

DSMF ~~ 4,8,10,17,22,23,31,33,35,38,42,45,46,83 & 84.)

In their Statement of Material Facts, the Defendants state as fact:

1) In 2004, after a team cookout, Cookson took the team to a local farm. (DSMF

~ 4.)

2) Team members had another team member take off her shoes and stand in

sheep poop. (DSMF ~ 8.)

3) In 2005, a team member parent made a complaint about hazing to then

Superintendent Webb. (DSMF ~ 33.)

4) After completing an investigation, Webb wrote a memo dated 5/21/05 to

Plaintiff identifying what Webb understood to be a single incident, which was

inappropriate and never to happen again. (DSMF ~~ 35 & 38; Defs.' Ex. 5.)

5) In 2005, the team again went to the local farm and team members again

walked through sheep poop. (DSMF ~ 10 & 17.)

6) In 2005, new players were assigned to older payers as servants/slaves to carry

bags and Plaintiff acknowledged this as hazing. (DSMF ~~ 22, 23 & 31.)

7) A tort claims notice was filed with Superintendent Lee on 10120/05 regarding

Cookson's practices and approved activities (DSMF ~ 42; Defs.' Ex. 3.)

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8) Lee undertook his own investigated and met with Cookson. (DSMF ~~ 44 &

46.) He made the final decision not to nominate Plaintiff as varsity softball

coach on 1/17/06. (DSMF ~ 84.) Lee did not become aware of Cookson's

sexual orientation until after his decision. (DSMF ~ 83.) Lee's decision not to

nominate Plaintiff was based on Plaintiff s violation of hazing policies and her

inability to recognize the inappropriateness of her actions. (DSMF ~ 81 & 85.)

Plaintiff s responses to DSMF are as follows:

1) Admits that the team went to the farm. (Plaintiffs Opposition to DSMF

"PODSMF" ~ 4)

2) Admits that standing in sheep poop happened. (PODSMF ~ 8.)

3) Admits that a parent wrote a letter but objects to its contents (PODSMF ~ 33.)

4) Admits that Webb did investigation and admits what Webb's letter said.

(PODSMF ~ 35 & 38.)

5) Admits the team went back to farm a second time. (PODSMF ~ 17.)

6) Admits the existences of the servant program with younger players carrying

bags, but qualifies this admission with additional non-material facts.

(PODSMF ~~ 21, 22 & 31.)

7) Admits that a tort claim notice was served on the school, but qualifies this

admission non-material facts (PODSMF ~ 42.)

8) Denies that Cookson's sexual orientation did not playa role in Lee's decision

not to nominate Cookson as varsity Softball coach and denies that Lee did not

know about her sexual orientation. (PODSMF ~~ 83 & 84l

The issue is whether Plaintiff has demonstrated by

2 This last point represents a distraction from the issue.

direct or circumstantial evidence that Superintendent Lee failed to hire her because she was female or

5

The heart of this case has nothing to do with whether the Plaintiff was a

successful coach in terms of her win/loss record or whether she was an 'excellent' coach

on the field. This case turns on the demonstrated evidence of Plaintiff's poor judgment in

permitting certain conduct between team members; conduct which was and is

inconsistent with the policies of the Brewer School Department and the judgment of the

Superintendent. The Plaintiff has carried her burden of demonstrating that she is a

protected person who was not rehired and, accordingly, experienced an adverse job

action. The Defendants dispute that Plaintiff has met her burden of showing that she was

"qualified" to do the job. Qualification in the context of this case has nothing to do with

a win/loss record. Rather qualification addresses whether the Plaintiff, as coach, ran a

program that is consistent with the directives of the Brewer School Department and the

judgment of its Superintendent.

For the sake of discussion, the Court will accept that in her response to

Defendants' Motion for Summary Judgment, Plaintiff has demonstrated the elements ofa

prima facie case of unlawful discrimination under the Maine Human Rights Act, or at

least raised disputed questions of fact. The Defendants, however, have articulated and

demonstrated a non-discriminatory reason, the practice of hazing, for not hiring/re-hiring

the Plaintiff as the Brewer girls' softball coach. The pattern of engaging in or supporting

the hazing of the players, and in particular younger players, was clearly inconsistent with

the articulated principles of the Brewer School Department as interpreted and applied by

the Superintendent. Because the Defendants' have demonstrated a legitimate non-

because of her sexual orientation, not whether Plaintiff has demonstrated that Lee knew of her sexual

orientation. Even if he knew, there still must be evidence of causation between that knowledge and the

rehire decision.

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discriminatory reason for not rehiring Ms. Cookson, the burden shift backs to Ms.

Cookson to demonstrate that the Defendants' actions were under the guise of a pretext.

When viewing the evidence in the Plaintiff s favor, Ms. Cookson has not carried her

burden by demonstrating that the Defendants' articulated reason for not hiring/re-hiring

her was a pretext. As a matter of law, Plaintiff has not provided direct or circumstantial

evidence to carry her burden. She has not satisfied the evidentiary requirements of

McDonnell and Doyle.

Summary judgment for the Defendant on Count I is GRANTED.

B. COUNT 2: Slander Per Se

In Maine, the elements of defamation include: (a) a false and defamatory

statement concerning another; (b) an unprivileged publication to a third party; (c) fault

amounting at least to negligence on the part of the publisher; and (d) either actionability

of the statement irrespective of special harm or the existence of special harm caused by

the publication. Lester v. Powers, 596 A.2d 65, 69 (Me. 1991). A defamatory statement

is one that "harm[s] the reputation of another as to lower him in the estimation of the

community or to deter third persons from associating or dealing with him." Restatement

(Second) of Torts § 559 (1977). "If slanderous words ... directly tend to the prejudice or

injury of one in his profession, trade or business they are actionable [as slander per se]."

Pattangall v. Mooers, 113 Me. 412, 415, 94 A. 561 (1915); see also Restatement

(Second) of Torts § 570(c) (1977).

1. Expressions ojQpinion that Imply Defamatory Facts

Generally, statements that are expressions of opinion are not actionable. True v.

Lander, 513 A.2d 257, 262 (Me. 1986). An expression of opinion, however, can be

7

defamatory if it implies the allegation of undisclosed defamatory facts as the basis of the

opinion. Id.; see also Restatement (Second) of Torts § 566; Staples v. Bangor Hydro-

Elec. Co., 629 A.2d 601, 603 (Me. 1993) stating "An expression of opinion may be

actionable if it implies the existence of undisclosed defamatory facts. " (citation omitted).

In True v. Lander, True, a teacher, sued the Superintendent of School Union 30 for

slander based on statements the Superintendent made to True's prospective employer. 3

In finding for True, the court reasoned that his prospective employer could have

interpreted the Superintendent's remarks as implying that True had received unfavorable

evaluations, that True was uninvolved in school extracurricular activities, that he failed to

assist students outside the classroom, or that the students were not performing well in

True's class. As such, the court construed these statements to be opinions that implied

undisclosed defamatory facts. True, 513 A.2d at 262.

While the statements made by the Superintendent in True may imply or suggest

underlying defamatory facts, this court finds that True is inapplicable here. The alleged

statement made by Dr. Lee was a factual statements, not a statement of opinion. Even if

the statement is viewed as an opinion, the words used by Dr. Lee do not address Ms.

Cookson's ability or performance as a coach. Dr. Lee did not say that Ms. Cookson was

not a good coach, or did not go the extra mile, or did not turn student-athletes on, as in

True. Dr. Lee only stated that he could not talk about Ms. Cookson's file. Such

statement is not an opinion and cannot be construed as an opinion implying undisclosed

defamatory facts.

2. Statements ofFact

3 The Superintendent stated that" I). True was a good mathematician, but not a good mathematics teacher;

2). True was 'more concerned with living up to the terms of his contract rather than going the extra mile';

and 3). [the Superintendent] 'did not feel [True] turned students on.''' True, 513 A.2d at 260.

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The court is responsible for determining whether a statement is an opinion or a

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fact. If a statement is viewed as a fact, a defendant can assert the truth of such statement

as a defense. Picard v. Brennan, 307 A.2d 833, 834-35 (Me. 1973) (stating "proof of

truth of the statements alleged to be slanderous is always a defense"); see also

Restatement (Second) of Torts § 581A. A fact is something that can be "objectively

verified." (Webster's II new Riverside Dictionary (1984), Definition no. 2.) The alleged

statement by Dr. Lee is one that can be actually proven and as such, is a factual

statement. As the Superintendent of Schools for the Brewer School Department, Dr. Lee

was privy to information contained in Ms. Cookson's file. Additionally, pursuant to 20­

A M.R.S.A. § 6101 (2)(B), Dr. Lee was prohibited from sharing such information,

whether positive or negative, with the public.

The alleged statement is also a true factual statement. The Defendants use 20-A

M.R.S.A. § 6101 in support of its defense. Under this statute, certain types of

information relating to an employee must be kept confidential,5 including evaluations of

employee performance, as well as complaints and charges of misconduct, both of which

were included in Ms. Cookson's file. Dr. Lee could have been referencing those items,

or he could have been referencing any number of ''things'' including Ms. Cookson's

4 See Carson v. Bangor Publishing Co., 470 A.2d 782,784 (Me. 1984) stating, "the determination whether

an allegedly defamatory statement is a statement offact or opinion is a question of law."

5 The statute specifically list the following: 1) All information, working papers and examinations used in

the examination or evaluation of all app licants for emp loyment; 2) Medical information of any kind,

including information pertaining to diagnosis or treatment of mental or emotional disorders; 3)

Performance evaluations, personal references and other reports and evaluations reflecting on the quality or

adequacy of the employee's work or general character compiled and maintained for employment purposes;

4) Credit information; 5) Except as provided by subsection 1, the personal history, general character or

conduct of the employee or any member of the employee's immediate family; 6) Complaints, charges of

misconduct, replies to complaints and charges of misconduct and memoranda and other materials

pertaining to disciplinary action; 7) Social security number; 8) The teacher action plan and support system

documents and reports maintained for certification purposes; and 9) Criminal history record information

obtained pursuant to section 6103.

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social security number, credit information, or medical conditions, when he made the

alleged statement. Regardless of which "things" Dr. Lee was referencing, it is a fact that

he knew personal information about Ms. Cookson, and it is a fact, that he was prohibited,

by law, from sharing such information with the public.

Additionally, the alleged factual statement made by Dr. Lee was not tainted with

any opinion that Dr. Lee may have had about Ms. Cookson. The statement was not that

he knew "unfavorable", "undesirable," or "negative" things about Ms. Cookson. The

words allegedly used by Dr. Lee were factually true, and not prefaced or qualified by any

defamatory language that could harmed Ms. Cookson's reputation. Dr. Lee simply

stating that he was unable to share information with the public does not mean that Ms.

Cookson committed improper acts, and it cannot be implied from such a statement that it

was Dr. Lee's opinion that Ms. Cookson committed improper acts.

The statement made by Dr. Lee, if made, either as represented by the Plaintiff or

the Defendants, was a true statement, and if made, was not a defamatory statement. The

Plaintiff has failed to show that the alleged statement directly prejudiced or injured her

professionally. Accordingly, the Plaintiff has failed to establish the required elements of

slander per se. Summary judgment for the Defendant on Count 2 is GRANTED.

CONCLUSION

The entry will be Summary judgment for the Defendant on Counts 1 and 2 is

GRANTED. At the direction of the Court, this Order shall be incorporated into the

docket by reference. Rule 79(a).

Dated: November 19,2007

evin M. Cuddy, Justice

Maine Superior Court

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11/20/2007 MAINE JUDICIAL INFORMATION SYSTEM ksmi.th

PENOBSCOT COUNTY SUPERIOR COURT mjxxi.013

PAGE A - ATTORNEY BY CASE VIEW

KELLY JO COOKSON VS BREWER SCHOOL DEPARTMENT ET AL

UTN:AOCSsr -2006-0117042 CASE #:BANSC-CV-2006-00223

SEL VD REPRESENTATION TYPE DATE

01 0000002551 ATTORNEY:GREIF, ARTHUR

ADDR:

F FOR:KELLY JO COOKSON PL RTND 10/13/2006

02 0000003587 ATTORNEY:HEWEY, MELISSA

ADDR:

F FOR:BREWER SCHOOL DEPARTMENT DEF RTND 10/25/2006

F FOR:DANIEL LEE, SUP DEF RTND 10/25/2006

03 0000010031 ATTORNEY:WAN, ANDREA V.W.

ADDR:

F FOR:KELLY JO COOKSON PL RTND 02/27/2007