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Jandreau v. Shaw's Supermarkets11/25/2003
appellate review, which were granted and consolidated for appeal pursuant to 39-A M.R.S.A. § 322 (2001).
II. DISCUSSION
A. The Application of Section 353 to an Employer's Facially Neutral Termination Policy
Section 353 of the Act prohibits discrimination against employees "in any way for testifying or asserting any claim" under the Act.
The hearing officer relied on two of our decisions-Lindsay, 532 A.2d at 153-54 and Delano v. City of S. Portland, 405 A.2d 222 (Me. 1979)-in concluding that the application of Shaw's facially neutral termination policy toward Jandreau constituted a violation of section 353. We conclude that these precedents do not support a finding of discrimination in this case.
In Delano, the employee was reclassified to a lower pay scale after refusing to perform part of his duties in his post-injury employment that contained a risk of re-injury. 405 A.2d at 223-24. We determined that there is no per se discrimination when an employer makes a bona fide employment decision according to the employee's post-injury ability to work, even though the employee's inability to work may result from a work-related injury. Id. at 228-29. Because the "reclassification based on the lack of bona fide qualification for the higher classified occupation," the employer's reclassification was not discriminatory. Id. at 229.
In contrast with Delano, we found in Lindsay that an employer's facially neutral absenteeism policy was discriminatory and contrary to section 353. Lindsay, 532 A.2d at 153. The employer, Great Northern Paper, had a "no fault" absenteeism policy whereby employees with a certain number of unexcused absences, regardless of the reason for those absences, were penalized with a two-week suspension without pay. Id. at 152. Due, in part, to Lindsay's previously unexcused absences and, in part, to his work-related absences, Lindsay was suspended without pay for fourteen days. Id.
We held that the suspension without pay was discriminatory pursuant to former 39 M.R.S.A. § 111 (1989), repealed and replaced by P.L. 1991, ch. 885, §§ A-7, A-8 (codified at 39-A M.R.S.A. § 353), containing substantially similar language to current section 353. Lindsay, 532 A.2d at 153. Although the absenteeism policy was facially neutral, we found that it was discriminatory as applied to Lindsay "because it label his rightful absence because of a work-related injury as an unexcused absence." Id. Unlike Delano, where the employee was prevented by an injury from performing a job, the employee in Lindsay was able to return to his pre-injury employment. Id. at 152. Therefore, the suspension in Lindsay served no other purpose than to penalize the employee for missing work as a result of a work injury. Id. at 153.
Since the hearing officer's decision in this case, we have had another opportunity to consider the application of section 353 to a facially neutral termination or discipline policy in Laskey v. Sappi Fine Paper, 2003 ME 48, 820 A.2d 579. In Laskey, the employee was able to return to his pre-injury job for several years after his injury, the only difference in his work capabilities being: "(1) he needed help more frequently than others because of his weight lifting restriction; and (2) his assignments were affected somewhat by his inability to work more than eight hours a day." Id. 2, 4, 820 A.2d at 580. As part of an overall downsizing effort, the employer instituted a policy that employees with work restrictions, who were not able to perform essential functions of their job, would no longer have their work restrictions accommodated and would be terminated. Id. 5, 820 A.2d at 580.
We affi
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