By Matthew J. LaMourie, Esq.

On November 14, the Maine Law Court denied an appeal brought by a longtime Bath Iron Works (“BIW”) employee against the shipbuilder, in a matter successfully handled by Preti Flaherty attorneys.  The employee, Daniel LePage, alleged disability discrimination after BIW officials determined that he was unqualified to carry a firearm as part of his job as a security guard.  The Court’s decision serves to clarify the so-called “continuing violation” doctrine, which has allowed certain plaintiffs to avoid the running of an otherwise applicable statute of limitations deadline in some types of employment discrimination cases.

After it was determined that several parts of BIW’s facility ought to be monitored by armed security personnel following the 911 attacks, BIW administered a variety of tests to establish whether its guards were qualified to carry a firearm.  At the time of his tests, Mr. LePage, had worked at BIW as a security guard for over twenty years.  Following a psychological evaluation, it was determined that Mr. LePage possessed aggressive tendencies, experienced difficulties in getting along with others, had problems accepting criticism, and showed inappropriate judgment under stress.  BIW declined to allow Mr. LePage to carry a firearm based on those findings and limited his assignments to posts that did not require an armed guard.  Mr. LePage did not qualify to receive the hourly pay increase that BIW provided to its guards who passed the tests and were issued firearms.

In his lawsuit against BIW, Mr. LePage alleged discrimination on the grounds that he was perceived by BIW to have a mental disability.  In addition, he claimed retaliation and intentional infliction of emotional distress.  At the Superior Court level, it was held that Mr. LePage failed to demonstrate all the necessary legal elements for discrimination and failed to file his claims in a timely manner.  The court also concluded that because the act of alleged discrimination occurred on April 30, 2002, when BIW communicated its decision not to qualify Mr. LePage, his discrimination claim was time-barred because he failed to satisfy the six-month filing deadline imposed by the Maine Human Rights Commission and the two-year deadline for suits filed in Superior Court. 

On appeal, Mr. LePage took issue with the Superior Court’s characterization of BIW’s alleged discriminatory act, and when it occurred, since determination of that issue was central to his efforts to avoid the effect of the missed filing deadlines.  The question analyzed by the Law Court involved the issue of whether BIW’s notice of disqualification to Mr. LePage, initially expressed in April 2002, had “reached a sufficient degree of permanence at that point in time to put LePage on notice of his duty to assert his rights under the MHRA.”  When some notice or alleged action is determined to have permanence, it is said to place a reasonable person on notice of discrimination sufficient to begin the statute of limitations period for filing.  By contrast, if the alleged discrimination represents “an aggregation of a series of acts in which the unlawful practice cannot be said to occur on any particular day,” then determination of when a claimant is aware that he or she has been the victim of discrimination is much less precise, which under some circumstances, permits application of the continuing violation doctrine for the purpose of extending the limitations period. 

The Law Court’s reaction to Mr. LePage’s arguments was predictably mixed.   The Court was divided on whether on the statute of limitations should commence from the time that Mr. LePage was first made aware of his disqualification or when BIW notified him (much later) that its decision was final.  A majority of five justices ruled that even though a BIW official held out hope to Mr. LePage that BIW’s decision could be reconsidered, that fact did not serve to alter the actual date upon which he became aware of what he alleged to be discrimination (the disqualification).   As stated by the majority, BIW’s initial written notice of the disqualification “marks the starting point for the applicable limitations periods because it provided LePage unambiguous and authoritative notice of the alleged discriminatory decision of which he now complains.”  The Court’s dissenting justices disagreed with this interpretation, citing facts from the summary judgment record indicating that BIW’s final decision on disqualification was not made at the time the initial notice was sent.  The minority justices reasoned that the issue of the timing of BIW's decision should be sent back to the Superior Court for further factual review.

Although the Court decided the case on narrow grounds, the entire LePage dispute touched on a range of complex legal doctrines having to do with what constitutes a disability, when an employee has suffered an adverse employment action, and what types of conduct rise to the level of workplace retaliation.  Given the fluid state of Maine’s administrative regulations in the area of employment discrimination, Maine courts will continue to wrestle with ill-defined concepts and evolving legal interpretations on a regular basis.  As they do, Maine employers will need to keep current on new legal developments as they unfold.