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

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

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

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

Theschool district has said that Cookson’s contract was not renewed aftershe allegedly forced the girls on her team to walk barefoot throughsheep 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 thedistrict’s claim that her contract was not renewed for so-called hazingincidents was a pretext for the real reason she was fired — her sexualorientation.

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

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

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

Lee decided not to recommend the rehiring of Cookson at the end ofthe 2006 season after the parents of former team member Stacey Gommfiled a notice of claim — the first step in filing a lawsuit — with theschool department that referred to the sheep feces incident and afterhe 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 onwhether to rehire Cookson until after he learned she was a lesbian wasa major factor in the court’s decision, Saufley wrote.

“Considered in conjunction with evidence of Lee’s initial impulsenot to request Cookson’s resignation,” she said, “his alleged failureto fully investigate Cookson’s reports of hazing on other teams, andhis reliance on hazing incidents for which Cookson had already beenpunished, a fact-finder could reasonably conclude that Lee’s decisionwas not based on Cookson’s conduct but instead was motivated by hersexual orientation.”

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

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

Greif alleged that Lee’s predecessor had reprimanded Cookson for thepicnic incident and that school officials had ignored other reports ofhazing and singled out Cookson for punishment because of her sexualorientation.

Melissa Hewey, the attorney for the school district, said in ane-mail Tuesday that her client is “gratified that the Supreme JudicialCourt affirmed the Superior Court’s decision to dispose of the slanderclaim. … The court’s decision clearly vindicates the superintendent onthis 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 ofher softball team walk barefoot in and touch sheep feces as a hazingactivity, for at least three years in a row,” Hewey said. “Suchrepulsive behavior is more than enough reason for the board’s decisionnot to renew her coaching contract. Her sexual orientation hadabsolutely nothing to do with that decision, and we believe that willbe 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)