adverse actions involve tangible deprivations such as demotion, pay reduction, termination, or denial of promotion
How later courts described this case
- adverse actions involve tangible deprivations such as demotion, pay reduction, termination, or denial of promotion
- applying the analysis in the context of a claim pursuant to the Maine Whistleblow-ers Protection Act
- applying Morris’ language to the MHRA
- applying same rule under MHRA
Written by the judges who cited it.
The opinion
SILVER, J.,
dissenting in part and concurring in part, with whom,
CALKINS, J., joins.
[¶ 26] I respectfully dissent from the portion of the Court’s opinion holding that the filing of LePage’s complaint was untimely. Underlying this holding is the Court’s conclusion that BIW’s decision to disqualify LePage from carrying a firearm became final in April 2002. Because I believe that there is a genuine issue of material fact concerning when BIW’s decision actually became final, I would remand for a factual determination of that issue.
[¶ 27] BIW contends, and the Court concludes, that the decision to disqualify Le-Page from carrying a firearm became final in April 2002, when Dr. Mazorra notified LePage by letter that he did not meet the company’s requirements to carry a firearm. The apparent impetus for the majority’s conclusion is that LePage, after receiving this letter, could have brought suit immediately and BIW could not have argued that LePage had not, at that point, suffered an adverse employment action.
[¶ 28] In light of the evidence in the summary judgment record, I am not persuaded that this conclusion is clear. Le-Page argues that BIW’s decision did not become final until October 30, 2003, when Dr. Mazorra informed him that an “endpoint” had been reached in BIW’s decision-making process. In support of his contention that BIW’s April 2002 determination was not its final decision, LePage cites the following portion of Dr. Mazorra’s 5 deposition transcript, where she testified to her belief that the April 2002 letter did not contain BIW’s final decision:
Q. Let me back up because I didn’t ask you this. In April when you originally disqualified Mr. — or determined he was disqualified, it’s your understanding that wasn’t a final decision; in other words, Mr. LePage could have taken remedial action to qualify.
A. That’s correct.
[¶ 29] In addition to this bold statement from the individual in charge of BIW’s qualifying program, during a May 8, 2002, *638 meetmg with LePage, Dr. Mazorra informed him that the April 30 decision was not necessarily final and that he could undertake counseling as a means of addressing the issues that were standing in his way so that he could possibly qualify in the near future. The following portion of Dr. Mazorra’s deposition transcript in the summary judgment record supports this position:
Q. Was there some discussion with Mr. LePage about pursuing some type of remedial action that he could do to qualify to carry a weapon?
A. Yes. It’s documented on that note. Q. And that was your opinion that he might benefit from some counseling, correct?
A. That’s correct.
Q. What type of counseling did you have in mind?
A. Counseling that would address how to deal with stressful situations, how to avoid escalation of conflict.
[¶30] The note to which Dr. Mazorra referred contains the following passage:
Mr. LePage is interested in pursuing remedial action to be able to qualify to carry a weapon. It is my opinion that he might benefit from some counseling, and I will review as to what individuals in the community can provide those kinds of services.... I would consider re-testing him in 3 to 6 months, but these are personality traits that are hard to change and it is unlikely that any changes would be made in a short time period. Therefore, I would recommend re-testing in 6 months.
[¶ 31] The question of when BIW’s decision to disqualify LePage from carrying a firearm became final certainly affects the outcome of this case, and is, therefore, a material fact. See Kinney v. Me. Mut. Group Ins. Co., 2005 ME 70, ¶ 15 , 874 A.2d 880, 884 . In my view, the parties statements of material facts create a factual dispute concerning when BIW’s decision regarding LePage actually became final and commenced the running of the limitations period. Considering the evidence in the light most favorable to LePage, as we must on summary judgment, Jacques v. Pioneer Plastics, Inc., 676 A.2d 504, 506 (Me.1996), a genuine issue of material fact exists concerning when BIW’s decision became final. Because this is a factual issue that I believe must be determined by the fact-finder, I would vacate the entry of summary judgment in favor of BIW and remand for a factual determination of finality.
. According to BIW’s statement of material facts, its firearm-qualifying program tasked Dr. Mazorra with making the final' decision regarding qualification to carry a firearm based upon her professional judgment, as well as the results of physical and psychological testing that applicants were required to undergo.