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Soucy v. Sullivan & Merritt
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	1999  ME 1
Docket:	WCB-97-567
Argued:	October 6, 1998
Decided:	January 6, 1999

Panel:WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, SAUFLEY, ALEXANDER, and
CALKINS,  JJ.



ROBERT SOUCY v. SULLIVAN & MERRITT, et al.

ALEXANDER, J.

	[¶1]  The employee, Robert Soucy, appeals from a decision of the
Workers' Compensation Board denying his petition to remedy
discrimination.  39-A M.R.SA. § 353 (Supp. 1998).  The Board concluded
that, although there was evidence of discriminatory conduct arising after the
date of settlement, Soucy waived his right to assert a claim for
discrimination relating to prospective acts when he entered into a 1993
settlement agreement and contemporaneously resigned from employment. 
Because we conclude that there is insufficient evidence that the parties
reached an agreement with respect to discrimination claims arising in the
future, we vacate the decision of the Board.
	[¶2]  The Board's decision is based on the following undisputed
findings.  Prior to his injury, Soucy was employed as an iron worker
receiving short-term work-assignments with various employers through his
labor union.  Soucy suffered a work-related injury on January 20, 1989,
while employed at Sullivan & Merritt.  Sullivan & Merritt is a large
employer, operating several facilities in northern Maine and was a primary
source of work for Soucy prior to his injury.  
	[¶3]  Soucy settled his workers' compensation claim against Sullivan
& Merritt in 1993 for a lump sum of $10,000.  He also signed a separate,
contemporaneous resignation and a release of liability.  Soucy was medically
cleared for work after the agreement.
	[¶4]  In 1995, Soucy was sent by his union to the Sullivan and Merritt
job site in Madawaska, Maine, to apply for work.  When he arrived at the
work-site, he was told by the employer that he would not be hired because
of the lump sum settlement.  Soucy filed a petition with the Board, alleging
that the employer's refusal to rehire him constituted discrimination.{1}  
	[¶5]  The Board found, as a fact, that the employer's refusal to rehire
Soucy was based solely on the existence of the lump sum agreement.  The
Board then considered whether Soucy had waived his right to bring a claim
for discrimination.  The Board stated: "The question in this particular case
is does [the agreement] prohibit discrimination claims for acts of
discrimination which occur after the date of settlement?"  
	[¶6]  Examining the language of the agreement, the Board concluded
that the settlement "specifically covers any acts of discrimination made by
the employer up to the date of the commutation of benefits," but does not
address prospective claims arising from future acts of discrimination. 
However, the Board denied Soucy's petition for discrimination based on
what it understood to have been a common practice among other employers
and employees.  We granted Soucy's petition for appellate review pursuant to
39-A M.R.S.A. § 322 (Supp. 1998).
	[¶7]  As we have stated, approved settlement agreements are binding
as to matters agreed upon, see Dufault v. Midland-Ross of Canada, Ltd., 380
A.2d 200, 205 (Me. 1977), and principles of contract govern their
interpretation, Hafford v. Kelly, 421 A.2d 51, 53 (Me. 1980).{2}  The language
of the settlement agreement, as the Board concluded, contains no explicit
waiver of Soucy's right to bring a discrimination claim related to a refusal to
rehire him in the future.{3}  In the absence of express contractual language,
the existence of such a waiver must arise from an implied term outside the
written agreement, and there must be competent evidence in the record of
an intent by both parties to create such a term at the time of the contract. 
See Seashore Performing Arts Ctr., Inc. v. Town of Old Orchard Beach, 676
A.2d 482, 485 (Me. 1996).  Moreover, any agreement that is purported to
include a waiver of an employee's important statutory right must be
construed narrowly with ambiguities resolved in favor of the employee.  See
e.g., Wright v. Universal Maritime Serv. Corp., 119 S. Ct. 391, 396 (1998)
(no waiver of statutory right to judicial forum for federal statutory
discrimination claim in absence of clear and unequivocal language in
agreement).
	[¶8]  The Board, in this case, based its finding of an implied
agreement on its own experience that it is a "common practice" for
employers to intend to sever all potential liability for prospective
discrimination claims by entering into lump sum settlements with
contemporaneous resignations.  The Board made no finding in this case,
however, that Soucy knowingly and intentionally waived his right to bring a
claim for discriminatory conduct arising in the future, and there is no
evidence in the record to support such a finding.  As the Board found, Soucy
was never questioned during the lump sum settlement confirmation
proceeding about whether he understood that he was giving up his ability to
seek future employment with Sullivan & Merritt.  Indeed, had the employee
and the Board understood at the time of the confirmation that Soucy would
be giving up all future possibility of employment with Sullivan & Merritt, his
primary source of employment, the Board would have been required,
pursuant to 39-A M.R.S.A. § 352(3)(C), to consider the employee's post-
injury earnings and employment prospects to determine whether he was
adequately protected by the agreement.  This did not occur.  We conclude
that, under the facts of this case, the Board's finding of a common practice
in the industry, without more, is insufficient to establish that Soucy
intended to forego prospective claims for future acts of discrimination.
	[¶9]  Although the Board found that Soucy was refused work because of
the settlement agreement, and not specifically for "asserting [a] claim under
[the] Act," as required by 39-A M.R.S.A. § 353, we conclude that the
decision, taken as a whole, implies a finding of discriminatory conduct with
the additional finding that Soucy waived his right to assert a discrimination
claim.  We vacate the decision only with respect to the latter finding
involving waiver.  We affirm the Board's finding of discriminatory conduct
and remand for further proceedings pursuant to section 353.
	The entry is
The decision of the Workers' Compensation
Board vacated.  Remanded to the Workers'
Compensation Board for further proceedings
consistent with this decision.

Attorney for employee: Thomas R. Watson, Esq., (orally) McTeague, Higbee, MacAdam, Case, Watson & Cohen, P.A. P O Box 5000 Topsham, ME 04086-5000 Attorney for employer: Peter M. Weatherbee, Esq., (orally) Weatherbee, Woodcock, Burlock & Woodcock, P.A. P O Box 1127 Bangor, ME 04402-1127
FOOTNOTES******************************** {1} . Section 353 provides, in pertinent part: § 353. Discrimination An employee may not be discriminated against by any employer in any way for testifying or asserting any claim under this Act. Any employee who is so discriminated against may file a petition alleging a violation of this section. The matter must be referred to a hearing officer for a formal hearing under section 315, but any hearing officer who has previously rendered any decision concerning the claim must be excluded. If the employee prevails at this hearing, the hearing officer may award the employee reinstatement to the employee's previous job, payment of back wages, reestablishment of employee benefits and reasonable attorney's fees. . . . . 39-A M.R.S.A. § 353. {2} . Section 352, governing lump sum settlements, provides, in pertinent part: § 352. Lump-sum settlements 1. Agreement. An insurer, self-insurer or self-insured group and an employer and employee may by agreement discharge any liability for compensation, in whole or in part, by the employer's payment of an amount to the employee if: A. The insurer, the employee or the employee's dependents petition the board for an order commuting all payments for future benefits to a lump sum; B. Six months' time has elapsed from the date of an injury; and C. The provisions of this section have been met and the agreement has been approved by the board. . . . . 3. Review. Before approving any lump-sum settlement, the board shall review the following factors with the employee: A. The employee's rights under this Act and the effect a lump-sum settlement would have on those rights, including, if applicable, the effect of the release of any employer's liability for future medical expenses; B. The purpose for which the settlement is requested; C. The employee's post-injury earnings and prospects, considering all means of support, including the projected income and financial security resulting from proposed employment, self-employment or any business venture or investment and the prudence of consulting with a financial or other expert to review the likelihood of success of these projects; and D. Any other information, including the age of the employee and of the employee's dependents, that would bear upon whether the settlement is in the best interest of the claimant. . . . . 39-A M.R.S.A. § 352 (Supp. 1998). {3} . Sullivan & Merritt conceded at oral argument that the settlement agreement is silent on this point.