## Facts

- Kelly Jo Cookson, a lesbian, served as Brewer High School varsity softball head coach from 1993–2005 and had sustained team success.
- During the 2005 season, a player’s parent complained to the superintendent, alleging verbal abuse and hazing tied to an off-season “farm” incident involving contact with sheep feces.
- The superintendent investigated and issued Cookson a letter of reprimand after learning of a similar incident before the 2004 season.
- Daniel Lee became superintendent in September 2005 and soon received a tort-claim notice from the same family based on the farm incidents.
- Lee met with Cookson and the athletic director; Cookson refused to resign, and Lee stated resignation was not being considered; Cookson also reported hazing concerns involving other teams.
- Lee conducted an investigation, reviewed prior complaints, and concluded the incidents raised serious concerns under the school’s anti-hazing policy.
- Lee had authority to recommend coaching appointments to the school committee, which typically followed his recommendations.
- While considering whether to recommend Cookson for reappointment, Lee learned Cookson was a lesbian; he ultimately did not recommend her and instead recommended the junior varsity coach for the varsity role.
- The replacement varsity coach was also a lesbian.
- After parents voiced support for Cookson, Lee told them there were “concerning things” in Cookson’s file that he could not disclose and compared the situation to an incident at another school involving a staff member who belonged to a nudist colony.
- Cookson sued for (1) sexual-orientation employment discrimination under the Maine Human Rights Act (MHRA) based on non-reappointment and (2) slander per se based on Lee’s remarks; the trial court granted summary judgment for defendants on both claims.

## Issues

1. Whether the summary judgment record permitted a reasonable fact-finder to infer that the failure to reappoint Cookson was motivated by sexual-orientation discrimination under the MHRA.
2. Whether Lee’s statements to parents were capable of a defamatory meaning, including as slander per se, because they communicated or implied undisclosed defamatory facts about Cookson’s professional fitness.

## Decision

- Summary judgment for defendants on the MHRA discrimination claim was affirmed.
- Summary judgment for defendants on the slander per se claim was vacated.
- The case was remanded for further proceedings on defamation.

## Legal Principles

- MHRA disparate-treatment claims are analyzed using the McDonnell Douglas burden-shifting framework informed by federal antidiscrimination law.
- After an employer articulates a legitimate, nondiscriminatory reason, the employee must produce evidence from which a reasonable fact-finder could both disbelieve the proffered reason and find that unlawful discrimination was the true motivating factor.
- Evidence that the position was filled by another person within the same protected class may weaken an inference of discriminatory motive.
- Defamation requires a false and defamatory statement concerning the plaintiff, publication to a third party, and fault at least amounting to negligence.
- Statements framed as opinion may be actionable when they imply undisclosed defamatory facts.
- Slander per se includes statements that ascribe conduct or characteristics that would adversely affect a person’s fitness for the proper conduct of a lawful profession or occupation.

## Conclusion

The court held that Cookson failed to raise a triable issue that sexual-orientation bias motivated the non-reappointment decision in light of the school’s hazing-related rationale and the selection of another lesbian coach, but it allowed the defamation claim to proceed because a fact-finder could interpret the superintendent’s “concerning file” remarks and nudist-colony comparison as implying undisclosed, job-disqualifying misconduct.


Cookson v. Brewer Sch. Dep’t, 974 A.2d 276 (Me. 2009)