PORTLAND – Did the Brewer School Department discriminate against a winning softball coach because of her sexual orientation when she was not rehired in 2006?

Or did the superintendent refuse to recommend she continue coaching because she fostered hazing, including reportedly forcing players to walk barefoot through sheep feces?

Members of the Maine Supreme Judicial Court heard arguments on those questions Thursday in the Cumberland County Courthouse. It is the first time the high court heard a case involving discrimination based on sexual orientation since it was included in the Maine Human Rights Act several years ago.

Kelly Jo Cookson sued Superintendent Daniel Lee and the Brewer School Department in 2006 in Penobscot County Superior Court after she was not offered a contract to coach softball in the coming season. A teacher on Indian Island, Cookson had coached in Brewer since 1994.

Lee made the decision 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. That claim seeking monetary damages is still pending.

Cookson’s attorney, A.J. Greif of Bangor, alleged that she was not rehired because she is a lesbian and that statements Lee made slandered her. He charged that Lee’s predecessor had reprimanded Cookson for the incident and that school officials had ignored other reports of hazing and singled out Cookson for punishment because of her sexual orientation.

Last year, Superior Court Justice Kevin Cuddy granted Portland attorney Melissa Hewey’s motion for summary judgment made on behalf of Lee and the department. Cuddy found that the decision not to rehire Cookson was not discriminatory. Greif appealed to the state supreme court.

Some of the information Hewey included in her brief to the court, she said Thursday, came from the report of a private investigator hired by Gomm’s parents that was then turned over to Lee. Descriptions of the sheep feces incidents that had not been made public were included in Hewey’s brief to the court, including an allegation that Cookson told the players not just to walk in but to eat the sheep feces.

The concern over Cookson’s actions off the field began in 2004, according to Hewey’s brief, when two first-year players walked in sheep feces at a sheep farm at the end of preseason practice. The next year, the girls asked Cookson whether they were going to “do it” on a trip to the farm. The coach, according to Hewey, told the players she had not made up her mind.

“By the time they arrived at the farm, however, Ms. Cookson had made a decision,” Hewey wrote. “With her players circling around her, Ms. Cookson explained that the rookies had three choices – they could ride a ram, eat sheep feces or walk through sheep dung.

“Then, each player held out her hand, and Ms. Cookson placed a piece of sheep excrement into every outstretched palm,” Hewey continued. “After that, the rookies removed their shoes and walked through the sheep feces in bare feet.”

Greif countered in his reply brief that Hewey had “treated the occasion as a matter for closing argument before the jury.” The attorney said that Hewey’s own statement of facts filed with the justices quoted Cookson as saying, “I pretended” about making the players eat sheep feces.

“Thus, defendants, having made it clear to the superior court that the notion of eating sheep feces was an act of make-believe,” Greif wrote, “now seek to inflame this court into thinking that it was ever seriously suggested by Ms. Cookson that any such event would occur.”

He also told the court Thursday that what the girls walked in and what was given them to hold was “dried sheep pellets” not fresh animal feces.

The justices Thursday zeroed in on the question of hazing.

“Your client engaged in at least three hazing incidents, two involving sheep feces and one involving the taking of slaves, correct?” Justice Donald G. Alexander asked.

“No, no,” Greif replied. “The slave thing never happened.”

Cookson did, the attorney said, set up a mentoring program where a younger player was paired with an older player. The word used at one point to describe the younger player was “servant,” Cookson’s attorney explained.

Greif said that a jury should decide if Lee and the school department discriminated against Cookson. He told the justices that comments made about how Cookson treated her players, the fact that she is the only coach reprimanded for hazing despite complaints about other coaches condoning the activity, and the 10 to 20 meetings Lee held in executive session with school committee members about Cookson without her being present could allow a jury to conclude that the coach was fired because of her sexual orientation.

“The undisputed facts in this case would compel any responsible school administrator toward the decision that Dan Lee made,” Hewey told the court.

She contended that Lee made a hiring decision in 2006, while Elizabeth Webb, the former superintendent, was faced with the decision of reprimanding or firing a coach in the middle of the 2004 season when the first incident at the farm took place.

“[Lee] was looking at a candidate who had engaged in hazing activities repeatedly,” Hewey told the justices.

She said that there was no evidence in the case record of other coaches leading hazing activities as Cookson did.

Greif countered that a complaint had been made by a female player about a male basketball coach that was not investigated. He also told the justices that they should, at the very least, let the slander count go forward.

Justices Warren M. Silver and Andrew M. Mead, whose offices are based in Bangor, did not sit in on the arguments. Information on why they recused themselves from the case was not disclosed Thursday.

The court took the case under advisement. There is no timetable under which they must issue a decision.

jharrison@bangordailynews.net

990-8207