Wednesday, June 3, 2009

Jury May Decide If Hazing Was Pretext For Coach's Dismissal

From the web page of the Bangor (Maine) Daily News:

The Maine Supreme Judicial Court has sent back to Penobscot County Superior Court a former Brewer softball coach’s claim that she was fired because she is a lesbian.

The court ruled unanimously Tuesday that it was up to a jury to decide whether Kelly Jo Cookson’s contract was not renewed in 2006 because of her sexual orientation or because she condoned hazing, as the Brewer school district has claimed. In the same decision, the court upheld a Superior Court justice’s dismissal of Cookson’s slander allegations.

The former coach’s lawsuit was the first filed in the state after sexual orientation was included in the Maine Human Rights Act in 2005.

The school district has said that Cookson’s contract was not renewed after she allegedly forced the girls on her team to walk barefoot through sheep feces at a team picnic in 2005. A teacher on Indian Island, Cookson, 47, of Clifton had coached in Brewer since 1993.

Cookson claimed in her lawsuit, filed in October 2006, that the district’s claim that her contract was not renewed for so-called hazing incidents was a pretext for the real reason she was fired — her sexual orientation.

In 2007, Superior Court Justice Kevin Cuddy granted a motion by the school district and Brewer School Superintendent Daniel Lee, finding that the decision not to rehire Cookson was not discriminatory. The former coach’s attorney, A.J. Greif of Bangor, then appealed to the state supreme court.

The high court heard arguments in May 2008. Chief Justice Leigh I. Saufley wrote the 17-page opinion. Justices Andrew Mead and Warren Silver, both of Bangor, did not participate in the court’s deliberations.

“We recognize that a fact-finder could ultimately determine that Cookson failed to establish that Lee’s offered rationale was a pretext for illegal discrimination and that the serious nature of the hazing and other alleged incidents, the parental concerns and complaints, and the need for a more balanced program were the actual motivating factors behind the decision not to nominate her as head coach,” Saufley said.

Lee decided not to recommend the rehiring of Cookson at the end of the 2006 season after the parents of former team member Stacey Gomm filed a notice of claim — the first step in filing a lawsuit — with the school department that referred to the sheep feces incident and after he learned of Cookson’s sexual orientation.

The status of Gomm’s claim could not be determined Tuesday.

The fact that the superintendent did not make his decision on whether to rehire Cookson until after he learned she was a lesbian was a major factor in the court’s decision, Saufley wrote.

“Considered in conjunction with evidence of Lee’s initial impulse not to request Cookson’s resignation,” she said, “his alleged failure to fully investigate Cookson’s reports of hazing on other teams, and his reliance on hazing incidents for which Cookson had already been punished, a fact-finder could reasonably conclude that Lee’s decision was not based on Cookson’s conduct but instead was motivated by her sexual orientation.”

Greif reacted Tuesday to the court’s decision with a sports metaphor.

“While the Brewer School Committee has been high-fiving around home plate, Kelly has scored the tying run on a sacrifice squeeze and we’re going to extra innings,” he said Tuesday. “The game is never over until the last woman is out.”

Greif alleged that Lee’s predecessor had reprimanded Cookson for the picnic incident and that school officials had ignored other reports of hazing and singled out Cookson for punishment because of her sexual orientation.

Melissa Hewey, the attorney for the school district, said in an e-mail Tuesday that her client is “gratified that the Supreme Judicial Court affirmed the Superior Court’s decision to dispose of the slander claim. … The court’s decision clearly vindicates the superintendent on this point.”

She also said that the district is confident it will win the case at trial on its merits.

“Ms. Cookson has herself admitted that she oversaw the members of her softball team walk barefoot in and touch sheep feces as a hazing activity, for at least three years in a row,” Hewey said. “Such repulsive behavior is more than enough reason for the board’s decision not to renew her coaching contract. Her sexual orientation had absolutely nothing to do with that decision, and we believe that will be the ultimate ruling in this case.”

When the case might go before a jury could not be determined Tuesday.

The court's decision is linked here. (Mike Frisch)

http://lawprofessors.typepad.com/legal_profession/2009/06/from-the-web-page-of-the-bangor-maine-daily-newsthe-maine-supreme-judicial-court-has-sent-back-to-penobscot-county--superi.html

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