LePage v. Bath Iron Works

STATE OF MAINE RECEIVED & FILED SUPERIOR COURT

ANDROSCOGGIN, ss. CIVIL ACTION

9EC 1 3 2005 Docket No. CV-04-198

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DANIEL LEPAGE, ANDROSCOGGIN ~

Plaintiff SUPERlOR COURT

ORDER ON DEFENDANT'S

MOTION FOR

SUMMARY JUDGMENT

BATH IRON WORKS CORP.,

and

GENERAL DYNAMICS CORP.,

Defendants

PROCEDURAL HISTORY AND BACKGROLTND

On September 10, 2004, Daniel LePage filed a three-count complaint against Bath

Iron Works Corp. (BIW) and General Dynamics Corp. (GD) in the Androscoggin

County Superior Court. In h s complaint, Mi. LePage claimed that, during h s

employment as a security guard for BIW, he had been subjected to unlawful

employment discrimination, and intentional infliction of emotional distress by the

defendants, and that the defendants had violated the Whstleblower's Protection Act

(WPA), 26 M.R.S.A. § 831. GD filed its answer on October 4, 2004, denying any

violations and asserting nineteen affirmative defenses. BIW filed its answer on October

7, 2004, also denying all violations and asserting nineteen affirmative defenses.

The court issued a scheduling order on October 8, 2004, establishng various

deadlines, and stating that the case was not subject to the requirements of M.R.

Civ. P. 16B. T h s statement was based upon the court's mistaken understanding that

Mi. LePagers complaint about BIW and GD had been subjected to review by the Maine

Human Rights Commission (MHRC). Counsel for BIW appropriately brought that

error to the court's attention by filing a motion to compel alternative dispute resolution

on October 19, 2004. Without objection, the court granted that motion on October 27,

2004. Thereafter, the parties conducted discovery for several months, attended an

unsuccessful ADR session on February 9,2005, and concluded discovery in June 2005.

On June 23, 2005, the defendants filed a motion for summary judgment, based

upon their assertions that Mr. LePage's claims against them were not timely, that he

had failed to allege a cognizable claim of disability, that he had failed to establish a

prima facie case for violation of the WPA, that h s claim for intentional infliction of

emotional distress was barred by the Workers' Compensation Act, and that he had

failed to establish the elements of any of h s claims against GD. With that motion, the

defendants filed a Statement of Undisputed Material Facts (DSMF) containing forty-

seven (47) paragraphs.

On July 19, 2005, Mr. LePage filed his response in opposition to the motion. With

that document, he filed h s responses to the DSMF, but did not file any additional

statements of material fact as permitted by M.R. Civ. P. 56(h)(2). In many of h s

responses to the DSMF, however, Mr. LePage used either the "qualify" or "deny"

response to add informabon that was not directly addressed by the asserted fact, and

did not change the factual basis for the asserted fact. If a responding party believes that

the court should consider facts not presented in the moving party's statement of

material facts, the moving party should recite those facts in its additional statements of

material fact, rather than in the "qualifying" response. A denial or qualifying response

is not an opportunity to add facts to the record. However, because counsel for

defendants responded to these added statements, the court must identify them in some

fashion. These assertions will be referred to as the plaintiff's additional statements of

material fact (PASWIF).

With his response to the motion for summary judgment, Mr. LePage filed an

affidavit from Fred Moody, a former security officer at BIW and, without additional

affidavits, attached photocopies of five documents.

On July 26, 2005, the defendants filed a motion to strike Moody's affidavit and

four of the five documents Mr. LePage attached to his response. The defendants argued

that Moody's affidavit failed to comply with M.R. Civ. P. 56(e), and that the documents

were hearsay, not part of the record, and not supported by affidavit. On that same

date, defendants replied to the plaintiff's opposition to their pending motion. As noted

above, in that reply, defendants responded to Mr. LePage's "qualify" or "deny"

responses as though they had been asserted as additional statements of material fact.

Defendants' responses will be referred to as defendants' responsive statements of

material fact (DRSMF).

On August 2, 2005, Mr. LePage filed his objection to the motion to strike. He

argued that the documents he submitted, without affidavit, "are of a quality that could

be admissible at tnal." In addition, he argued that Moody's affidavit did comply with

the requirements of M.R. Civ. P. 56 (e). Defendants replied to that opposition on

August 9, 2005. The findings and conclusions below are based upon the court's review

of the parties' submissions, and reflect a reading of the record that gives the plaintiff the

benefit of all favorable inferences.

DISCUSSION

Before discussing the merits of the pending motion for summary judgment, the

motion to strike must be disposed of. As noted above, with h s opposition to the

defendant's motion for summary judgment, plaintiff filed an affidavit and copies of five

documents. After review of the affidavit and the documents, the court grants the

defendants' motion to strike as it refers to proposed exhbits 1, 2,4, and 5, and grants, in

part, the motion as it refers to the Moody affidavit. Although the jurat included on the

Moody affidavit is not precisely tailored to the requirements of the rule, some of the

statements made are clearly based entirely upon Mr. Moody's personal knowledge.

Specifically, paragraphs 1, 2, 3, 4, and 7 are based upon his personal knowledge and

would be admissible at trial. The documents, on the other hand, are not self-

authenticating, and have not been either identified by any competent witness or

supported by affidavit. They are not admissible evidence and, therefore, cannot be

used to support or deny an asserted fact.

Summary judgment is appropriate if the record shows that "there is no genuine

issue as to any material fact . . . and that [a] party is entitled to judgment as a matter of

law." M.R. Civ. P. 56(c). In determining whether this burden has been met, the court

must view the record in the light most favorable to the nonmoving party, and must

accept as true the uncontroverted facts properly appearing in the record. Champagne v.

Mid-Maine Med. Ctr., 1998 ME 87, q[ 5, 711 A.2d 842, 844.

The record in h s case permits the court to find the following: Since 1982, Daniel

LePage has been employed as a security guard at BIW. Plaintiff's complaint, P[¶ 4, 9.

After September 11, 2001, the United States Navy required BIW to arm those security

guards who perform some discrete functions at the shpyard. DSMF 1. For safety

reasons, BIW implemented a process patterned after established United States

Department of Transportation procedures to determine whch guards should be

permitted to carry firearms. DSMF 2, as qualified. In order to qualify to carry a firearm,

each guard had to pass a physical examination, a psychological examination, and a

qualification on the shooting range. DSMF 3.' BIW engaged Dr. Joseph Wojcik to

' Plaintiff's denial is not responsive to the fact asserted, and is not supported by the record

references provided.

conduct the psychological component of the qualification process. DSMF 4.2 BIW's

Chief of 'Occupational Medicine, Maria Mazzora, M.D., was given the responsibility for

mahng the final decision about which guards would be qualified to carry firearms.

DSMF 6, as qualified by PASMF 6.

On March 22, 2002, Dr. Wojcik evaluated Mr. LePage pursuant to BIW's

program. DSMF 8.3 He did not diagnose Mr. LePage with a psychological disorder.

DSMF Dr. Wojcik stated, however, that Mr. LePage had the following personality

traits: (1)a tendency to be overly assertive with others; (2) some difficulty getting along

with others; (3) a lack of judgment shlls regarding the appropriate level of response at

time of conflict; (4) difficulty accepting criticism; and, (5) difficulty communicating

clearly at times of stress. DSMF 11.' Based upon those findings, Dr. Wojcik concluded

that Mr. LePage did not meet the criteria to become an armed security guard at BIW.

DSMF 12.6

After receiving Dr. Wojcik's report, Dr. Mazorra would not qualify Mr. LePage to

carry a firearm w h l e worhng at BIW. DSMF 13.7 She informed Mr. LePage of that

decision in a letter dated April 30, 2002.' On May 8, 2002, after receiving that letter,

Mr. LePage met with Dr. Mazorra. DSMF 15.' At that meeting, Dr. Mazorra told

Mr. LePage that she was concerned about how he might react in a stressful situation.

Plaintiff's denial is not responsive to the fact asserted.

Plaintiff's qualification is not responsive to the fact asserted.

Plaintiff's qualification is not responsive to the fact asserted.

Plaintiff's qualification is not responsive to the fact asserted.

Plaintiff's denial is not responsive to the fact asserted.

Plaintiff's denial is not responsive to the fact asserted.

Plaintiff's denial is not responsive to the fact asserted.

Plaintiff's qualification is not responsive to the fact asserted.

She advised lum to attend counseling to work on h s capacity to deal with stress and to

work on the issues that were preventing lum from qualifying to carry a firearm.

DSMF 16, 17."

Sometime after that meeting, Mr. LePage saw Susan Chandler, Psy.D., for an

independent evaluation. Plaintiff's complaint, ¶22. Dr. Chandler wrote that she saw

Mr. LePage "for an evaluation of h s personality structure and level of anger repression

since these factors appeared to be weighted strongly in the weapons fitness decision."

DSMF 20." In Dr. Mazorra's opinion, Dr. Chandler neither addressed the issues she

identified nor refuted her conclusion that Mr. LePage was not suited for carrying a

firearm at work. DSMF 21.12

On February 23, 2003, at h s request, Mr. LePage went through a second

screening with Dr. Wojcik. DSMF 22.13 Based upon the testing that accompanied that

screening, Dr. Wojcik believed that Mr. LePagels psychological traits could interfere

with the performance of essential job functions, and suggested that BIW explore other

information before making a final decision. DSMF 23. After receiving the second

evaluation, Dr. Mazorra concluded that Mr. LePage was still not qualified to carry a

firearm while worlung at BIW and, on February 27, 2003, she wrote Mr. LePage a letter

explaining that her opinion had not changed. DSMF 25, as qualified by plaintiff's

deni a1.

'' Plaintiff's denials are not responsive to the fact asserted, and is not supported by the record

references provided. There is n o evidence that Dr. Mazorra told Mr. LePage that change was unlikely in

such a short period.

11

Plaintiff's denial is not responsive to the fact asserted, and is not supported by the record

references provided.

'*Plaintiff's denial is not responsive to the fact asserted, and is not supported by the record

references provided.

l3 Plaintiff's qualification is not responsive to the fact asserted, and is not supported by the record

references' provided.

On May 6, 2003, an attorney retained by Mr. LePage sent a letter to BIW

questioning its decision not to qualify Mr. LePage to carry a firearm at work. DSMF

26.l" That letter did not allege that Mr. LePage was being discriminated against because

of a disability. It stated that BIW was "[treating] Mr. LePage differently than h s peers

based on unsubstantiated and baseless allegations." DSMF 27, as qualified by plaintiff's

denial. After receiving that letter, Kevin Gildart, BIW's Vice President of Human

Resources, called Mr. LePage into 111s office for a meeting with himself and Russell

Swift. DSNIF 28.15 Mr. LePage has testified that the meeting with Mr. Gildart is the

basis for his complaints that the defendants violated the WPA. DSMF 29. l6

Mr. LePage continues to work at BIW and performs the same functions he did

before the Navy required BIW to staff some of its security positions with armed

personnel. DSMF 30.17 Because he is not authorized to carry a firearm, however,

Mr. LePage can no longer perform all of the duties delegated to the security force.

Specifically, he can no longer guard certain areas where an armed guard is required at

all times, and is not eligible for the $2.00 per hour in additional pay that goes to those

who are armed. PASMF 30.

Mr. LePage filed h s complaint with the MHRC on November 20,2003. DSMF 31.

He filed h s complaint with the Superior Court on September 10,2004.

l4 Plaintiff's denial is not responsive to the fact asserted.

l 5 Plaintiff's denial is not responsive to the fact asserted, and is not supported by the record

references provided.

l 6 Plaintiffs denial is not responsive to the fact asserted, and is not supported by the record

references provided.

17

Plaintiff's denial is not responsive to the fact asserted.

A. Timeliness

In their memorandum, defendants have argued that plaintiff's disability

discrimination claim is not timely because he failed to file a complaint withm six

months after April 30, 2002, the date Dr. Mazorra told h m , by letter, that he would not

be qualified to carry a weapon. They have asserted that, pursuant to 5 M.R.S.A. 5 4611,

Mr. LePage's complaint must be dismissed. In addition, that have argued that

Mr. LePage failed to meet the statutory deadline established in 5 M.R.S.A. § 4613(2)(C)

for filing the complaint with this court.

The defendants have argued that the events that occurred after April 30, 2002,

i.e., Mr. LePage's repeated attempts to have BIW qualify h m , do not postpone or toll

the filing deadlines, and do not renew or create a new cause of action. In support of t h ~ s

position, the defendants have cited, among other cases, Sharp v. United Airlines, Inc.,

236 F.3d 368 (7th Cir. 2001). In Sharp, the Court of Appeals for the 7th Circuit addressed

an employee's argument that the filing deadline was tolled by her employer's actions

by stating:

Finally, Ms. Sharp has not come forward with evidence of a

"continuing violation" that might extend the statute of limitations. Before

the district court, Ms. Sharp argued that United's subsequent refusals to

reconsider its decision of August 1996 (not to renew the origrnal offer),

culminating in the less-generous 1998 offer, constituted a continuing

course of pregnancy discrimination. However, "an employer's refusal to

undo a discriminatory decision is not a fresh act of discrimination." Lever,

979 F.2d at 556. Consequently, United's subsequent refusal to reconsider

the August 1996 decision does not constitute a separate act of

discrimination and cannot bring Ms. Sharp's claims within the 300-day

statute of limitations.

Sharp, at 373. The plaintiff responded to h s argument by citing Provencher v. CVS

Pharmacy, 145 F.3d 5 (1st Cir. 1998). In that decision, the court explained:

The continuing violation doctrine creates an equitable exception to the

300-day limitation when the unlawful behavior is deemed ongoing. See,

e.g., Lawton v. State Mut. Life Assurance Co. of Am., 101 F.3d 218, 221 (1st

Cir. 1996); Sabree v. United Bhd. of Carpenters and Joiners Local No. 33, 921

F.2d 396, 400-02 (1st Cir. 1990); Jensen v. Frank, 912 F.2d 517, 522 (1st Cir.

1990). A continuing violation allows a plaintiff not only to allege

otherwise time-barred acts, but more concretely, to receive damages, such

as back pay, based on and reachng back to those acts. See DeNovellis v.

Shalala, 124 F.3d 298, 307-08 (1st Cir. 1997) (citations omitted).

Continuing violations may be serial or systemic. See Pilgrim v.

Trustees of Tufts College, 118 F.3d 864, 869 (1st Cir. 1997). Provencher

argues that his claim could fall in either category. We h n k not. "A

systemic violation has its roots in a discriminatory policy or practice; so

long as the policy or practice itself continues into the limitations period, a

challenger may be deemed to have filed a timely complaint." Sabree,

921 F.2d at 400 n.7 (citing Jensen, 912 F.2d at 523). T h s type of claim

requires no identifiable act of discrimination in the limitations period,

Muniz-Cabrero v. Ruiz, 23 F.3d 607, 610 (1st Cir. 1994), and refers to general

practices or policies, such as hring, promotion, training and

compensation. See, e.g., Mack v. Great Atl. 6 Pac. Tea Co., 871 F.2d 179, 183

(1st Cir. 1989) (allegng a discriminatory promotional system); Rich v.

Martin Marietta, 522 F.2d 333, 348 (10th Cir. 1975) (entire promotional

system challenged as resulting in plaintiffs' staying in lower echelons

interminably); Barbara Lindemann 6 Paul Grossman, Employment

Discrimination Law 1355-59 (3d ed. 1996).

A serial violation occurs where a chain of similar discriminatory

acts emanating from the same discriminatory animus exists and where

there has been some violation w i h n the statute of limitations period that

anchors the earlier claims. See DeNovellis, 124 F.3d at 307. Discrimination

cases may involve acts that amount to unlawful discrimination upon their

repetition or escalation. See, e.g., Galloway v. General Motors Sew. Parts

Operations, 78 F.3d 1164, 1166 (7th Cir. 1996) ("In its early stages [acts]

may not be diagnosable as sex discrimination . . ., or may not cause

sufficient distress . . ., or may not have gone on long enough to charge the

employer with knowledge and a negligent failure to take effective

remedial measures."). It therefore makes most sense to view the anchor

violation requkement as demanding that the plaintiff prove a timely act

forming part of and exposing a pattern of actionable sexual harassment.

Merely residual effects of past discriminatory conduct, however, are not

themselves acts of discrimination and therefore will not satisfy the anchor

violation requirement. See DeNovellis, 124 F.3d at 309.

Provencher p. 14. Mr. LePage's accusations are based upon BIW's allegedly

discriminatory behavior toward h m as an individual, rather than upon any policy or

practice by the company that affected other employees. Therefore, h s claim will be

considered as a "serial" violation. T h s "violation" occurred on April 30, 2002, when

BIW decided that Mr. LePage would not be permitted to carry a firearm. The question,

therefore, is whether BIW's later action, specifically, the letter of February 27, 2003, is a

"residual effect" from the earlier action, or a separate action in a pattern of

discrimination.

After consideration of the record presented, and in light of the applicable case

law, the court is satisfied that BIW's willingness to allow Mr. LePage an opportunity to

try to resolve the issues that made him unsuitable to carry a weapon did not create a

"chain of similar discriminatory acts." Its decision in April was a discrete event, not

affected by its subsequent dealings with Mr. LePage. If, as Mr. LePage alleges, that

decision was based upon BIW's perception of h m as a disabled individual, its

continuing perception of h m as a disabled individual was not a separate act of

discrimination. His attempts to convince BIW to amend its original decision do not

extend the allegedly discriminatory act.

Mr. LePage filed his complaint with the MHRC on November 20, 2003. By

failing to file lus complaint within six months after the alleged act of unlawful

discrimination, Mr. LePage missed the filing deadline for the MHRC. 5 M.R.S.A. 5 4611.

In addition, he also missed the Equal Employment Opportunity Commission's 300-day

deadline. Finally, Mr. LePage also missed the filing deadline established for actions in

the Superior Court. He filed this suit on September 10, 2004, more than two years after

the April 30,2002 allegedly unlawful act. 5 M.R.S.A. § 4613(2)(C).

Because the "event" giving rise to h s claim occurred on April 30, 2002, and was

not extended by BIW's actions thereafter, Mr. LePage's disability discrimination claim is

not timely. Even if the claims had been filed in a timely manner, however, Mr. LePage

would still not be successful in h s suit, for the reasons outlined below.

B. Disability

The Maine Human Rghts Act (WIHRA) states that it is the State's policy to

"prevent discrimination in employment, housing or access to public accommodations

on account of race, color, sex, sexual orientation, physical or mental disability, religion,

ancestry or national origin." 5 M.R.S.A. § 4552. In order to demonstrate that he falls

w i h n the protections afforded by h s law, Mr. LePage must establish a prima facie

case that he has been discriminated against on the basis of a mental disability.

Included withn the definition of persons with physical or mental disabilities are

individuals who actually have a physical or mental disability, individuals who have a

record of a physical or mental disability, and individuals who are regarded as having a

physical or mental disability. 5 M.R.S.A. § 4553(7-B). In this case, Mr. LePage has

asserted that, although he does not have a mental disability, BW has treated h m as

though he did have such a disability.

MHRA defines disability as follows:

"Physical or mental disability" means any disability, infirmity,

malformation, disfigurement, congenital defect or mental condition

caused by bodily injury, accident, disease, birth defect, environmental

conditions or illness, and includes the physical or mental condition of a

person that constitutes a substantial disability as determined by a physician or,

in the case of mental disability, by a psychiatrist or psychologist, as well as any

other health or sensory impairment that requires special education,

vocational rehabilitation or related services.

5 M.R.S.A. § 4553(7-A) (emphasis added). The MHRC, the body charged with

implementing the MHRA, has regulations stating that an impairment includes any

mental or psychological disorder, such as mental retardation, organic brain syndrome,

emotional or mental illness, and specific learning disabilities. JVIHRC Employment Reg.

3.02(C)(2)(ii). At her deposition, Dr. Mazorra testified that Mr. LePagels "mental health

issues" disqualified h m from carrying a weapon. PASMF 35. In a memo, she stated,

with more specificity, that Mr. LePage tvas rather volatile, at times prone to be overly

assertive, had difficulty accepting criticism and getting along with others, and that h s

judgment regarding an appropriate level of response to conflict were of concern.

Dr. Mazorra also stated that these were "personality profile traits that are hard to

change and it is unlikely that any changes would be made in a short time period."

PASMF 35, Mazorra deposition exhibit 3. Although she repeated t h ~ sopinion at

various times, there are no Record references demonstrating that either she or

Dr. Wojcik ever diagnosed Mr. LePage with any sort of "mental impairment." In fact,

Dr. Mazorra stated, "having a condition does not constitute an impairment." DOSNIF

10.

In addition, even if Mr. LePage could establish that the personality profile traits

cited above did fall w i h n the definition of a mental disorder, he has failed to present

any evidence to support the assertion that BIW believed that h s personality profile

traits substantially limited h m in at least one major life activity. "Major life activities"

are "functions such as caring for one's self, performing manual tasks, walking seeing,

hearing, speaking, breahng, learning and worlung." MHRC, Employment Reg.

J€ 3.02(C))(2)(b).There is no evidence in the record to support a finding that BIW

believed Mr. LePage's personality traits prevented h m from caring for hmself,

performing manual tasks, wallung, seeing, hearing, speaking, breahng, learning or

worhng. Carrying a firearm is not a major life activity.

In an analogous case involving the New York Police Department, a candidate

was deemed to have shown poor judgment, irresponsible behavior and poor impulse

control that rendered h m unsuitable to be a police officer, although he was not

diagnosed as having any particular psychological disease or disorder. In that case, the

Court of Appeals for the Second Circuit wrote:

Appellant argues that due to the misperception concerning his personality

traits he cannot work as a New York City police officer and therefore he is

substantially limited in a major life activity--worhng in the Police

Department. Major life activity has been defined by the regulations as,

inter alia, "worhng." 45 CFR 5 84.3(j)(2)(ii). However, the regulations

cannot be interpreted to extend this definition to include worhng at the

specific job of one's choice. Tudyman, 608 F. Supp. at 745. The position of

New York City police officer demands unique qualifications that

appellant has failed to meet. Being declared unsuitable for the particular

position of police officer is not a substantial limitation of a major life

activity. See Forrisi v. Bowen, 794 F.2d 931, 934-35 (4th Cir. 1986) (Several

courts have decided "unanimously that an employer does not necessarily

regard an employee as handicapped simply by finding the employee to be

incapable of satisfying the singular demands of a particular job."). As the

district court noted in Tudyman, "for the same reason that the failure to

qualify for a single job does not constitute a limitation on a major life

activity, refusal to h r e someone for a single job does not in and of itself

constitute perceiving the [person] as a handicapped individual."

Tudyman, 608 F. Supp. at 746.

In Forrisi, the Court of Appeals for the Fourth Circuit noted that the

Rehabilitation Act was intended to protect the disabled from

discrimination in employment and stated that:

it would debase this high purpose if the statutory protections

available to those truly handicapped could be claimed by anyone

whose disability was minor and whose relative severity of

impairment was widely shared. Indeed, the very concept of an

impairment implies a characteristic that is not commonplace and

that poses for the particular individual a more general

disadvantage in h s or her search for satisfactory employment.

794 F.2d at 934 (citation omitted). Appellant's personality traits could be

described as commonplace; they in no way rise to the level of an

impairment.

Based upon the evidence presented, and for the reasons stated above, h s court holds

that the personality profile traits noted by BIW do not amount to a mental condition

that substantially limits a major life activity. Therefore. Mr. LePage, as a person having

those traits, or perceived as having those traits, cannot be considered a hanhcapped

person w i h n the meaning of the MHRA.

C. Whstleblower Protection Act

The WPA prohbits employers from discriminating against employees who have

reported some violation of law. 26 M.R.S.A. 5 833. In DiCentes v. Michaud, 1998 ME 227,

719 A.2d 509, the Law Court explained that, to prevail upon a claim of unlawful

retaliation pursuant to the WPA, the employee must show: "(1) that she engaged in

activity protected by the WPA, (2) that she experienced an adverse employment action,

and (3) that a causal connection existed between the protected activity and the adverse

employment action." Id. ¶ 14, 719 A.2d at 514. Even if the court finds that Mi. LePage

could establish the first element,18 based upon the record presented by h s case,

Mi. LePage cannot establish a prima facie case for the second or third of those three

elements. Mi. LePage suffered no "adverse employment action" after he sent the letter

or even after he met with Mi. Gildart. All of the "adverse action" had occurred a year

before either of those events. The on-going nature of BIW's refusal to allow Mr. LePage

to carry a firearm does not create a nexus with the letter or the meeting with Gildart.

D. Intentional Infliction of Emotional Distress

The exclusivity and immunity provisions of the Workers' Compensation Act bar

employees from pursuing civil litigation against their employers for injuries incurred in

the course of their employment. 39-A M.R.S.A. § 104. That general rule covers claims

involving allegedly intentional tortious acts. Li v. C.N. Brown, 6645 A.2d 606 (Me. 1994);

Frank v. L.L. Bean, Inc., 352 F. Supp. 2d 8 (D. Me. 2005). Even if Mi. LePage were able to

prevail on h s claims of &scrimination, the portion of h s complaint alleging intentional

infliction of emotional distress is barred.

l8 Based upon a reading that allows the plaintiff the benefit of all possible inferences, the court

will assude that the letter sent to BIW's counsel by Mr. LePagels attorney contained an allegation that

Mr. LePage was being treated in a discriminatory fashion because of a perceived disability.

E. General Dynamics Corporation

BIW is a wholly owned subsidiary of GD. That alone, however, is not a sufficient

basis to hold GD liable for BIW's actions. Neither is Mr. LePage's statement that,

because GD's name appears on h s paycheck, GD employs him. Mr. LePage has failed

to assert that GD played any part in the allegedly discriminatory actions taken by BIW,

and has failed to allege that there would be any inequitable result from accepting BIW's

separate corporate status.

ORDER

For the reasons stated above, defendant's motion for summary

judgment is granted. Judgment is granted to the defendants on all counts

of plaintiff's complaint.

The clerk is directed to incorporate h s order by reference in the docket for h s

case.

Dated: P w /3,2@5

~ "&=l&-

Ellen A. ~okman\,

-LIL..-A

Superior Court Justice