MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2009 ME 57
Docket: Pen-07-706
Argued: May 15, 2008
Decided: June 2, 2009
Panel: SAUFLEY, C.J., and CLIFFORD, ALEXANDER, LEVY, and GORMAN, JJ.
KELLY JO COOKSON
v.
BREWER SCHOOL DEPARTMENT et al.
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.
MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2009 ME 57
Docket: Pen-07-706
Argued: May 15, 2008
Decided: June 2, 2009
Panel: SAUFLEY, C.J., and CLIFFORD, ALEXANDER, LEVY, and GORMAN, JJ.
KELLY JO COOKSON
v.
BREWER SCHOOL DEPARTMENT et al.
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.
2
[¶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
1
As of the date of filing of this appeal, this notice of claim had not ripened into a lawsuit.
3
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
2
During his investigation, Lee received a copy of a report from a private investigator hired by the
family who sent the notice of tort claim, detailing other alleged controversial incidents involving
Cookson.
4
“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 (1973). The court then concluded,
5
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.
[¶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
6
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.â€
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.â€
5 M.R.S. § 4621 (2008).
7
[¶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.
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 (1993);
McDonnell Douglas, 411 U.S. at 802. 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;
McDonnell Douglas, 411 U.S. at 802. 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. 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.
8
[¶15] Cookson has generated issues of fact regarding her prima facie case
by offering evidence that (1) she is a lesbian; (2) she applied for and was qualified
for the job of softball coach; (3) she was not rehired for the job; and (4) the job was
later filled by a person who is not in the suspect class. See id. at 506; McDonnell
Douglas, 411 U.S. at 802. The School Department then articulated legitimate,
nondiscriminatory reasons for refusing to rehire Cookson: that she was involved in
hazing in violation of the school’s anti-hazing policy and failed to provide a
balanced sports program. See McDonnell Douglas, 411 U.S. at 802. Thus, the
burden then shifted back to Cookson to present facts that could demonstrate that
the reasons asserted by Lee were a pretext for illegal discrimination. See id. at
804-05; St. Mary’s Honor Ctr., 509 U.S. at 507-08. This is the central issue on
appeal.
[¶16] Although the plaintiff in an employment discrimination case retains at
all times the ultimate burden of persuading the fact-finder that the employer was
motivated by discriminatory animus, the “rejection of the defendant’s proffered
reasons will permit the trier of fact to infer the ultimate fact of intentional
discrimination.†St. Mary’s Honor Ctr., 509 U.S. at 511; see also Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147 (2000) (“Proof that the
defendant’s explanation is unworthy of credence is simply one form of
circumstantial evidence that is probative of intentional discrimination . . . . In
9
appropriate circumstances, the trier of fact can reasonably infer from the falsity of
the explanation that the employer is dissembling to cover up a discriminatory
purpose.â€). Thus, once an employer has articulated a legitimate, nondiscriminatory
explanation for the employment decision, an employee can survive a motion for
summary judgment by presenting sufficient evidence from which a jury could
reasonably conclude that either (1) the circumstances underlying the employer’s
articulated reason are untrue, or (2) even if true, those circumstances were not the
actual cause of the employment decision.3 See Stanley v. Hancock County
Comm’rs, 2004 ME 157, ¶ 23, 864 A.2d 169, 177.
[¶17] Although trial courts should exercise caution in resolving issues of
pretext on summary judgment in employment discrimination cases, see Billings v.
Town of Grafton, 515 F.3d 39, 56 (1st Cir. 2008), “the presence of the issue of
motivation or intent does not relieve the plaintiff of her or his burden of producing
evidence sufficient to create a question of fact on that issue,†Stanley, 2004 ME
157, ¶ 25, 864 A.2d at 178. One way to meet this burden is to demonstrate through
affirmative evidence “such weaknesses, implausibilities, inconsistencies,
3
Because a demonstration that the circumstances proffered by the employer were not the actual
reason for the employment decision allows the inference at trial that the true reason was discriminatory
animus, Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147 (2000), the generation of an issue
of fact regarding the veracity of the employer’s explanation is sufficient to repel a motion for summary
judgment. However, this does not lessen the plaintiff’s ultimate burden, and at trial the employee is
required to demonstrate not only that the employer’s asserted reasons were untrue, but also that the actual
reasons were discriminatory. See id. at 146-48; St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 507-08,
515-16 (1993).
10
incoherencies, or contradictions in the employer’s proffered legitimate reasons for
its action that a reasonable factfinder could rationally find them unworthy of
credence and . . . infer that the employer did not act for the asserted
non-discriminatory reasons.†Billings, 515 F.3d at 55-56 (quotation marks
omitted).
[¶18] With these legal principles in mind, we examine the facts set forth in
the parties’ statements of material facts in the light most favorable to Cookson, the
nonprevailing party, to determine whether the summary judgment record evidences
a genuine issue of material fact on the issue of pretext. See Dyer, 2008 ME 106,
¶ 14, 951 A.2d at 825.
[¶19] Cookson concedes that the conduct in the sheep pen constituted
hazing. Thus, she does not assert that the factual circumstances underlying Lee’s
proffered explanation for the decision not to rehire her are false. She argues,
rather, that illegal discrimination based on her sexual orientation—and not
concerns arising from the incidents of hazing—caused that decision.4
4
The parties agree that, although Lee made the recommendation to the School Committee to hire Skip
Estes instead of Cookson, it was ultimately the Committee’s decision whether to accept or reject that
recommendation. In this circumstance, Cookson can meet her burden of proof on the issue of pretext by
presenting evidence that (1) the Committee harbored or demonstrated discriminatory animus towards her,
either existing independently or conveyed to it by Lee; or (2) Lee’s decision not to recommend Cookson
was motivated by discriminatory animus and he participated in or directly influenced the ultimate
decision not to rehire her. See Webber v. Int’l Paper Co., 417 F.3d 229, 236-37 (1st Cir. 2005); Cariglia
v. Hertz Equip. Rental Corp., 363 F.3d 77, 84-88 (1st Cir. 2004). Although Cookson appears to argue
that the Committee did harbor discriminatory bias against her, there are insufficient facts in the summary
judgment record to support this assertion. However, the record does support the fact that the Committee
11
[¶20] Viewed in the light most favorable to Cookson, the facts could be
understood as follows: in early 2005, the parent of one of Cookson’s former
players registered a complaint with Betsy Webb, Lee’s predecessor as
superintendent, accusing Cookson of hazing. After investigating the allegations in
the complaint, Webb issued a letter of reprimand to Cookson. Later that year, the
same family that had made the previous complaint to Webb sent a notice of tort
claim to Lee based on many of the same allegations contained in that complaint,
and before Lee began his own investigation, he indicated that he was not thinking
along the lines of requesting Cookson’s resignation. During Lee’s investigation,
Cookson reported incidents of hazing on other teams to Lee, but he did not initiate
an investigation into them.5 After learning of Cookson’s sexual orientation, Lee
recommended Estes and not Cookson for the coaching position, ostensibly because
of the same hazing incidents for which she had already been reprimanded and
which he had suggested previously would not result in a decision not to rehire her.
deferred to Lee’s recommendation regarding her contract renewal and did not conduct its own
investigation into the matter. See Thompson v. Coca-Cola Co., 522 F.3d 168, 178 (1st Cir. 2008)
(holding that an independent decision by a neutral decision-maker breaks the causal connection between a
supervisor’s discriminatory animus and an adverse employment action). Thus, Cookson’s discrimination
claim survives if she can demonstrate that Lee’s motivations were discriminatory.
5
The School Department objects that Cookson’s statements regarding hazing on other teams are not
based on her personal knowledge. However, the School Department does not deny that Cookson reported
these incidents, and the evidence may be considered for the purposes of demonstrating the fact and nature
of Cookson’s reports. See Kelley v. Airborne Freight Corp., 140 F.3d 335, 346 (1st Cir. 1998). In this
context, the evidence can be construed to impugn Lee’s articulated reasons for not rehiring Cookson by
casting doubt on the significance that her role in hazing activities played in the ultimate decision.
12
[¶21] The Superior Court concluded that these facts were simply
insufficient to generate a challenge to Lee’s assertion of a legitimate,
nondiscriminatory reason for declining to rehire Cookson. We recognize that
pretext is difficult to assess at the summary judgment stage, particularly given that
direct evidence of discriminatory animus will rarely be available.6 See Reeves, 530
U.S. at 141. There is no “mechanical formula†for identifying pretext, and the
issue of whether an employee has generated an issue of fact regarding an
employer’s motivation or intent is one heavily dependent on the individual facts
before the court. See Che v. Mass. Bay Transp. Auth., 342 F.3d 31, 39-40 (1st Cir.
2003).
[¶22] In these circumstances, an employee’s assertion of discriminatory
animus on the part of an employer will not survive summary judgment if she or he
relies on mere “conclusory allegations, improbable inferences, and unsupported
speculation.†Feliciano de la Cruz v. El Conquistador Resort & Country Club,
218 F.3d 1, 5 (1st Cir. 2000) (quotation marks omitted); see also LaFrenier v.
Kinirey, 550 F.3d 166, 167-68 (1st Cir. 2008) (holding that a party cannot defeat a
motion for summary judgment merely by asserting, without affirmative
contradictory evidence, that the moving party’s version of events is not believable).
6
In an affidavit submitted to the Superior Court on summary judgment, Lee indicated that he had, on
another occasion, hired an administrator whom he knew to be gay because he considered her to be the
best candidate for the job.
13
[¶23] However, an employee need not convince the court on summary
judgment that she was subjected to an adverse employment decision because of her
protected status, or even that her version of events is more plausible. See
Chadwick v. WellPoint, Inc., 561 F.3d 38, 47 n.11 (1st Cir. 2009) (“[A]t summary
judgment we do not decide which explanation for the [adverse employment action]
is most convincing, but only whether [the plaintiff] has presented sufficient
evidence regarding her explanation.â€); see also Arrow Fastener Co., 2007 ME 34,
¶ 17, 917 A.2d at 126-27 (indicating that the ultimate question for a court on
summary judgment is the failure of proof and not the relative credibility or
sufficiency of the evidence). Rather, the employee need only assert sufficient
facts, supported in the summary judgment record, from which a reasonable
fact-finder could disbelieve the employer’s proffered rationale and conclude that
illegal discrimination was the true motivating factor. See Reeves, 530 U.S. at
146-47; Stanley, 2004 ME 157, ¶¶ 12, 24, 864 A.2d at 174, 177-78.
[¶24] Applying this standard, and viewing the summary judgment record in
the light most favorable to Cookson, we conclude that she has generated a genuine
issue of material fact on the issue of pretext. 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
14
more balanced program were the actual motivating factors behind the decision not
to nominate her as head coach. Indeed, Lee asserts that his final decision not to
recommend Cookson could not have been motivated by discriminatory animus
because he made that decision on January 17, 2006, prior to discovering that
Cookson is a lesbian. However, he met with parents supportive of Cookson three
days later and suggested that he had not yet ruled out Cookson for the position at
that time. Further, his decision to recommend Estes was not communicated to the
Committee until after January 23, 2006, the date that he asserts he learned of her
sexual orientation.
[¶25] Thus, the timing of Lee’s ultimate decision, relative to when he knew
of Cookson’s sexual orientation, is, on the record before us, a material disputed
fact inappropriate for resolution at the summary judgment stage. Considered in
conjunction with evidence of Lee’s initial impulse not to request Cookson’s
resignation, 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.7
7
We are presented here with a summary judgment record that stands in contrast to that addressed in
Stanley v. Hancock County Comm’rs, 2004 ME 157, 864 A.2d 169. In Stanley, we affirmed the trial
court’s grant of summary judgment to an employer when the plaintiff failed to controvert through
affirmative evidence the employer’s proffered rationale for terminating him. Id. ¶¶ 23-24, 864 A.2d at
15
See Reeves, 530 U.S. at 147; Chadwick, 561 F.3d at 47 (noting that discrimination
can be demonstrated through the elimination of other nondiscriminatory reasons,
leaving discriminatory animus as the most plausible explanation).
[¶26] Accordingly, a fact-finder is the proper entity to determine whether
this and other evidence demonstrates that Lee’s asserted legitimate,
nondiscriminatory reasons were a pretext for illegal discrimination, and we vacate
the summary judgment on Cookson’s MHRA claim.
B. Slander Per Se
[¶27] Slander per se refers to spoken defamatory statements that “relate to a
profession, occupation or official station in which the plaintiff was employed.
Malice is implied as a matter of law in such cases, and the claimant may recover
compensatory damages without proving special damages.†Saunders v. VanPelt,
497 A.2d 1121, 1124-25 (Me. 1985). To prove defamation, a plaintiff must
establish that a false statement published to a third party harmed the plaintiff’s
reputation so as to lower her in the community’s estimation. Ballard v. Wagner,
2005 ME 86, ¶ 10, 877 A.2d 1083, 1087.
[¶28] Cookson argues that she generated a genuine issue of material fact
regarding whether Lee’s statements to the parents that he could not discuss her
177-78. Here, Cookson has presented sufficient evidence to support a reasonable inference that Lee’s
articulated reasons for failing to recommend her as head coach were untrue.
16
personnel file were defamatory because that file did not contain anything more
than Webb’s letter of reprimand and because Lee’s comments regarding Cookson’s
truthfulness and the comparison with the employee who was involved in a nudist
colony implied the existence of undisclosed damaging facts.
[¶29] However, Cookson has not presented facts to dispute that Lee’s
statement regarding her personnel file was true. Lee could not speak with the
parents about performance evaluations or other information reflecting on
Cookson’s quality as a coach. See 20-A M.R.S. § 6101(2)(B)(3) (2008) (providing
that information relating to “[p]erformance evaluations . . . 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†must be
kept confidential). Whether or not it was physically placed in Cookson’s file, the
information Lee learned upon his investigation was properly part of Cookson’s
personnel file and was required to be kept confidential. See id.
[¶30] Furthermore, Cookson has not offered facts to dispute that Lee was
being truthful when he said to the parents that he had made a personnel decision in
another case that involved a nudist and that he did not know whether Cookson had
been honest with the parents. Because Cookson has failed to raise a genuine issue
of material fact on her slander per se claim, the court did not err in entering a
summary judgment for Lee on this claim. In these circumstances, we need not
17
reach Lee’s additional argument that he is immune from tort liability because he
was performing a discretionary government function pursuant to 14 M.R.S.
§ 8111(1) (2008).
The entry is:
Summary judgment affirmed as to the slander per
se claim and vacated as to the employment
discrimination claim. Remanded for further
proceedings consistent with this opinion.
Attorneys for Kelly Jo Cookson:
Arthur J. Greif, Esq. (orally)
Andrea V.W. Wan, Esq.
Julie D. Farr, Esq.
Gilbert & Greif, P.A.
82 Columbia Street
PO Box 2339
Bangor, Maine 04402-2339
Attorney for Brewer School Department
and Daniel Lee:
Melissa A. Hewey, Esq. (orally)
Drummond Woodsum & MacMahon
245 Commercial Street
PO Box 9781
Portland, Maine 04104-5081
