Faithfull v. Maine Principals' Ass'n

• Court: Superior Court of Maine
• Decided: April 3, 2012
• Docket: CUMcv-10-62
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss. CIVIL ACTION DOCKET NO: CV-10-92 .JA"" - 13 Cv\ l"l- l-f I "2,{) I(_

INDIANA FAITHFULL

Plaintiff,

v.

MAINE PRINCIPALS' ASSOCIATION

Defendant,

and

CHEVERUSHIGHSCHOOL

Party-In-Interest

DECISION AND ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT This case is before the court on the defendant, Maine Principals'

Association's Motion for Summary Judgment on the plaintiff's two-count

amended complaint. The motion has been fully briefed by the parties and the

motion is ruled on without hearing pursuant to M.R. Civ. P. 7(b)(7).

BACKGROUND

The Maine Principals' Association ("MP A") is a private, non-profit

voluntary educational organization. (Def. Stat. Material Facts "DSMF"

maintains an Interscholastic Division that organizes and regulates the

interscholastic athletic competition of its member schools, including Cheverus

High School. (DSMF

student eligibility for interscholastic athletic competition and the various

processes for assuring compliance.

1 Article II, Section 11 of the By-Laws states that "a student is ineligible to

participate in more than four seasons in the same sport at the high school level."

(DSMF

freshman athletic teams. (DSMF

team of which he/ she is a member participates in a regularly scheduled athletic

event." (DSMF

"season" runs from December to February. The purposes of the "Four Seasons

Rule" include promoting equality in competition, diminishing risk of injury from

unequal competition, placing proper emphasis on academics, increasing

opportunities for more students to participate in interscholastic athletics, and

preventing "redshirting." (DSMF

2(G)(l) limits a student's eligibility to play any high school sport to the first eight

consecutive semesters after he or she first enrolls as a freshman in a four-year

senior high school (the "Eight Consecutive Semesters Rule"). (DSMF

Pursuant to the MP A By-Laws, any athletic contest in which the ineligible

player participated will be declared a loss for the school playing the ineligible

player (the "Forfeiture Rule"). (DSMF

another school is referred to the Management Committee. (DSMF

the allegedly offending school and the MP A resolve the matter by agreement, the

Management Committee holds an "adversary hearing" to determine if a

violation of the By-Laws has occurred. (DSMF

a challenge by another school that raises an issue of eligibility. Schools are

required to evaluate the eligibility of their own players and can raise an issue

through that process. And, the MP A can begin the process if it independently

discovers a violation.

2 Indiana Faithfull ("Faithfull" or "Plaintiff") is a dual citizen of the United

States and Australia. (DSMF ~ 4.) Faithfull attended schools in Australia from

kindergarten until July 2007, part way through his tenth year of school

(equivalent to tenth grade in the United States). (DSMF ~~ 7, 15.) In July 2007,

Faithfull was accepted to attend Cheverus High School in Portland, Maine.

(DSMF ~ 15.) Faithfull entered Cheverus in September 2007 to begin his

sophomore year .. (DSMF ~ 16.)

The academic calendar for Australian schools begins in late January and

ends in early December. (DSMF ~ 6.) Because of this structural difference in

calendars, a student who transfers after starting his or her first year of high

school at an Australian school will be barred from athletics under the Eight

Consecutive Semester Rule before second semester senior year. Also, although

Australia operates on a different academic calendar, basketball is played during

the same months as in the northern hemisphere: roughly from November

through March. (DSMF ~ 8. 1 ) Because the athletic season for basketball spans

two academic years, under the MP A By-Laws definitions, a student who

transfers from an Australian school after playing a winter sport in the first year

of high school will exhaust his or her Four Seasons of eligibility by the end of

junior year.

In late January 2010, both Gary Hoyt, Cheverus's athletic director, and

John Mullen, Cheverus's principal, approached Richard Durost, executive

director of the MPA, to discuss Faithfull's eligibility under the Eight Consecutive

Semesters Rule. (DSMF ~ 26.) The Cheverus officials acknowledged that

1 The Plaintiff appears to object to the use of the term "season" but the Plaintiff's supporting citations confirm that basketball is played during the months of November through March. (Pl. Resp. Stat. Mat. Facts <[ 8.) 3 Faithfull was ineligible under this rule but sought relief either through a waiver

or exception. (DSMF

seeking a waiver had long passed and that an exception would not be made.

(Id.) Without proceeding to a formal"adversary hearing," Cheverus agreed not

to play Faithfull and the MP A made a statement for Cheverus to use in its press

release praising the school's swift investigation and agreeable compliance.

(DSMF

On February 9, 2010, Faithfull filed his Complaint in this case. He alleged

that the MPA's "Eight Consecutive Semester Rule" of athletic eligibility violated

the Maine Human Rights Act, 5 M.R.S. §§ 4551-4634 (2011), by denying an

educational opportunity on the basis of national origin. Faithfull sought a

finding that the rule was discriminatory and sought injunctive relief confirming

his eligibility to play basketball in the spring semester of the 2009-2010 basketball

season. He also sought a temporary restraining order ("TRO") allowing him to

continue to participate in the basketball season while this issue was litigated in

the courts. This court granted the TRO on February 12, 2010 preventing the MP A

from enforcing the Eight Consecutive Semester Rule against Faithful!.

After the issuance of the TRO, Mr. Durost had conversations with

principal Mullen and athletic director Hoyt about the scope of the TRO. Durost

communicated that he did not believe that the TRO required Cheverus to

actually play Faithfull in the remaining games. (DSMF

explained the MP A "Restitution Rule," which states that if a school plays an

ineligible player pursuant to an injunction that is later reversed or vacated, the

school must still forfeit the game in which the ineligible player participated.

(DSMF

4 play during an athletic event. (DSMF 'I[ 43.) The Plaintiff also alleges that Durost

threatened to investigate Cheverus for the possibility that it "recruited" Faithfull

and that Durost continued to pressure Cheverus into not playing Faithfull

throughout the remainder of the season. (PASMF '}['}[ 109-110.2 )

Faithfull competed in the remainder of the 2009-2010 season and Cheverus

won the state championship. (DSMF 'I[ 44.) In preparation for further litigation

on Faithfull's Complaint, the MP A deposed Faithfull in June 2010. During this

deposition, the MPA learned that, beginning in January of his ninth grade year,

Faithfull played competitive interscholastic basketball for Cranbrook, his school

in Australia. (DSMF 'I[ 9. 3) At the end of his ninth grade year, Faithfull again

played competitive interscholastic basketball for Cranbrook during the months

of November and December. (DSMF '}['}[ 10, 51.) Therefore, Durost concluded

that Faithfull played basketball for Cranbrook in two "seasons" during his ninth

grade year. (Pl. Additional Stat. Mat. Facts "PASMF" 'I[ 99; DSMF 'I[ 54. 4 ) Given

that Faithfull continued to play basketball after transferring to Cheverus during

his sophomore and junior year, Durost concluded that Faithfull should have

been considered ineligible for the entire 2009-2010 season, under the Four Season

Rule. (DSMF 'I[ 54.)

Shortly after the deposition, Mr. Durost met with John Mullen and legal

counsel to discuss the apparent violation of the Four Seasons Rule and to attempt 2 The Defendant attempts to deny these facts with a citation to Durost's deposition. (Def. Reply to Pl. Additional Stat. Mat. Facts 11109-110.) However, the pages of the deposition cited are not included in the record and the court cannot determine if this is an effective denial. Therefore, the statements are deemed admitted for purposes of summary judgment. 3 The Plaintiff attempts to qualify the term "competitive interscholastic basketball" but the record citation does not establish any distinction. (Pl. Resp. Stat. Mat. Facts 119,10.) 4 Plaintiff attempts to deny this fact by objecting to the definition of the term "season." Regardless of how the Plaintiff defines the term, the denial is ineffective as to the MP A's conclusion regarding Faithfull's status under the MPA's own definition. (Pl. Resp. Stat. Mat. Facts 154.) 5 to come to agreement to resolve it. (DSMF

that Cheverus's forfeit of the 2009-2010 state basketball championship and

implementation of procedures to ensure timely detection of eligibility issues in

the future would be a satisfactory agreement to resolve the alleged violation.

(DSMF

championship will violate the TRO, has not agreed to the MP A's proposal and

has sought clarification of the TRO, which this court has declined to give. (DSMF

determining Faithfull's eligibility under the Four Seasons Rule. (DSMF

On June 29, 2010, Faithfull filed a charge with the Maine Human Rights

Commission alleging that the application of the Four Seasons Rule to him is

discriminatory on the basis of national origin and that the MP A's seeking

forfeiture of the state championship under this rule constituted retaliation for

filing suit under the Eight Consecutive Semesters Rule. (DSMF

Ultimately, the Commission did not find reasonable grounds to uphold a charge

of discrimination. (DSMF

Faithful! amended his complaint in this action, abandoning his claim of

discrimination under the Eight Consecutive Semesters Rule and adding a claim

alleging that the application of the Four Seasons Rule to him constituted

discrimination based on national origin and alleging that application of the rule

was retaliatory. (DSMF

summary judgment on both counts of Faithfull's Amended Complaint.

DISCUSSION

The MP A has moved for summary judgment on the Plaintiff's Amended

Complaint and seeks judgment in its favor on the grounds that the Plaintiff's

6 claim of discrimination at the hands of the Four Season Rule is not ripe, that the

Plaintiff lacks standing to assert it, that there is no evidence of disparate impact

and the rule is necessary for educational purposes, and that the claim of

retaliation is not supported by the evidence.

I. Summary Judgment Standard.

Summary judgment should be granted if there is no genuine dispute as to

any material fact and the movant is entitled to judgment as a matter of law. M.R.

Civ. P. 56( c). In considering a motion for summary judgment, the court should

consider the facts in the light most favorable to the non-moving party, and the

court is required to consider only the portions of the record referred to and the

material facts set forth in the parties' Rule 56(h) statements. E.g., Johnson v.

McNeil, 2002 ME 99, <_[ 8, 800 A.2d 702, 704. Rule 56(h) requires a party that is

opposing a motion for summary judgment to support any qualifications or

denials of the moving party's statement of material facts with record citations.

Levine v. R.B.K. Caly Corp., 2001 ME 77, <_[ 6 n.S, 770 A.2d 653. "All facts not

properly controverted in accordance with this rule are deemed admitted." Rogers

v. Jackson, 2002 ME 140 <_[ 7, 840 A.2d 379 (citing M.R. Civ. P. 56(h)(4)).

II. Discrimination under the Maine Human Rights Act, 5 M.R.S. §§ 4601, 4602.

The Defendant is correct to state that this is a different case than was

presented to the court in February 2010. The parties have abandoned the issue of

the Eight Consecutive Semester Rule and are proceeding solely under the Four

Seasons Rule. As this is an entirely new claim, questions of justicibility are

appropriate.

A court's analysis of ripeness examines both the issue's fitness for judicial

review and consideration of the hardship that may be caused to the parties if the

7 court withholds adjudication. Johnson v. City of Augusta, 2006 ME 92,

A.2d 855. "The legal dispute has to be concrete and specific with a direct,

immediate and continuing impact on the affected party." Id. (internal quotations

removed). The hardship must also be adverse and non-speculative. Id.

The MP A argues that Faithfull' s claim of discrimination on the basis of the

Four Seasons Rule is not ripe because the MPA has not yet made a determination

of ineligibility. That is, although the MP A attempted to negotiate a resolution

with Cheverus, based on the executive director's belief that Faithfull was

ineligible, there has not been any adversary hearing resulting in a finding that

Faithful! was ineligible because of the Four Season Rule. Furthermore, there

have been no consequences to Faithfull because of this attempted negotiated

resolution. The court cannot speculate on whether or not Cheverus will agree to

forfeit the state championship title5 and, if Cheverus does not, the court cannot

speculate on the outcome of the MPA Management Committee's adversary

hearing process. There is not yet any direct, immediate, or continuing impact on

Faithfull. Furthermore, Faithful! has not demonstrated any hardship that would

result from not adjudicating this issue now.

Faithfull argues that the MPA's position contradicts its prior assertion that

Faithfull was ineligible under the Eight Consecutive Semester Rule because that

determination was made without an adversary hearing. However, the current

situation is different than it was in when this case was brought in February 2010.

Then, the school approached the MP A with its assessment of Faithfull' s

eligibility and voluntarily entered an agreement with the MP A that Faithfull had

5 Cheverus' s statement that it will "do the right thing" is insufficient evidence to support the conclusion that Cheverus will forfeit the state championship title when the TRO is lifted. (DSMF 9I 68.) 8 exceeded eight semesters of eligibility and should be excluded from competition.

And, Faithfull was actually excluded until this court issued the TRO. Here, now,

there has been no agreement between the school and the J\1P A as to eligibility

under the Four Seasons Rule and there has not been any consequence to

Faithfull, his teammates, or the school. The position of the J\1P A that this case is

not ripe is not contrary to the position it took prior to the Amended Complaint.

III. Retaliation Claim under 5 M.R.S. § 4633.

The Maine Human Rights Act authorizes an independent action arising

from any retaliation or improper coercion, intimidation, or threats made against

an individual for exercising the rights granted to them under the Act. 5 M.R.S. §

4633. To make a prima facie case of retaliation, the plaintiff must prove that he

engaged in protected activities, that the defendant took subsequent adverse

actions against the plaintiff, and that there was a causal link between the

protected activity and the adverse actions. See Watt v. UniFirst Corp., 2009 ME 47,

<][ 33, 969 A.2d 897; see also Blake v. State, 2004 Me. Super. LEXIS 90, * 10 (Mar. 22,

2004), aff'd 2005 ME 32, 868 A.2d 234 (stating that, in an employment context, to

be considered "adverse action" the conduct must affect the employee's

compensation, terms or other conditions of employment and that actions such as

required counseling or transfer of clients is not adverse action). When an

adverse action takes place in "close proximity" to the protected activity, the

burden of proof shifts to the defendant to show a non-discriminatory reason for

the adverse action. Watt, 2009 ME 47 at<][ 33.

Faithfull alleges that the MP A made "repeated direct and indirect

threats," such as Durost contacting Cheverus after the issuance of the TRO and

requesting that it not play Faithfull, Durost stating to Cheverus that if Faithfull

9 played it would investigate alleged recruitment, Durost stating that if Faithfull

did not play then the MPA's restitution rule would not apply, Durost requesting

that Cheverus voluntarily forfeit the state title, and the MP A seeking to declare

Faithfull ineligible for the entire 2009-2010 season under the Four Seasons Rule.

(Am. Compl. «J[«J[ 19-23, 45; PASMF «J[«J[ 109-110.)

The MP A does not dispute that Durost had conversations with Cheverus

officials regarding the scope of the TRO, that he maintained that the TRO did not

require that Faithfull actually play, nor the fact that Durost explained the

consequences of the Restitution Rule. The MP A has failed to properly deny the

allegations of threats to investigate "recruiting" of Faithfull if Cheverus

continued to play him. However, even without dispute as to these facts, the

Plaintiff has failed to meet his burden of proof because none of these facts assert

that the MPA's actions constitute adverse consequences for Faithfull and he has

failed to establish the causal connection between his filing this lawsuit and the

MP A making these statements and taking these positions.

As discussed above, the Four Seasons Rule has not yet been applied to

find that Faithfull was ineligible and Cheverus has not reached any agreement

with the MP A to concede to such a finding. Whatever actions Durost took, there

have not been any adverse consequence to Faithfull of the kind contemplated by

the case law: he was allowed to play in all of the games occurring after the TRO

became effective, he and his team won the state title, he received individual

awards for his performance, and he graduated from high school and has

continued to play basketball.

Also, the MPA's actions were not incongruous with its right to vigorously

enforce its rules and participate in litigation to enforce those rules. Other than

10 asserting the applicability of the Four Season Rule, the actions that Faithfull

objects to are consistent with the position that the MP A took regarding Faithfull' s

eligibility under the Eight Consecutive Semester Rule before this case was filed.

The Maine Human Rights Act's prohibition of retaliation does not prevent a

party from continuing to assert and litigate its legal position. The MP A's

attempted application of the Four Seasons Rule to Faithfull is also a continued

assertion of the MPA's position that Faithfull was ineligible. Additionally, the

MP A attempted application of the Four Seasons Rule occurred several months

after Faithfull filed his Complaint and not in close enough "proximity" to cause

the shift of burden to the MP A to demonstrate a non-discriminatory reason for

applying the rule. Therefore, the burden remains on Faithfull to establish a

causal connection between filing this lawsuit and the MP A's attempted

application of the Four Seasons Rule and that burden has not been met.

The entry is:

The Maine Principals' Association's Motion for Summary Judgment on

the Plaintiff's Amended Complaint is GRANTED. The Amended Complaint is

dismissed without prejudice. The Temporary Restraining Order, entered by this

court on February 12,2010 is VACATED.

The Clerk is directed to incorporate this Order into the docket by reference

pursuant to M.R. Civ. P. 79(a).

DATE: April2, 2012 _'4_.,;.--'¥-A-=-~---:-----------­ J~Wheeler Justice, Superior Court

Plaintiff-Richard O'Meara Esq -Paul Greene Esq Defendant MPA-Margaret LePage Esq PII Cheverus-Melissa Hewey Esq 11