WATHEN, Chief Justice.
We are called on to decide whether a person who is diagnosed as being subject to compulsive sexual behavior may be considered as mentally disabled for purposes of the antidiscrimination provisions with respect to employment within the purview of the Federal Rehabilitation Act of 1973 or the Maine Human Rights Act. Plaintiff Donald C. Winston appeals from an order of the Superior Court (Androscoggin County, Alexander, J.) granting summary judgment in favor of defendants Maine Technical College System (MTCS), Central Maine Technical College (CMTC), and Richard Conrath.
The factual assertions viewed in the light most favorable to plaintiff may be summarized as follows: Plaintiff taught in the MTCS for nineteen years. He was a tenured English instructor at CMTC in 1989 when he was terminated for violating the school's sexual harassment policy by kissing one of his eighteen-year-old female students after a sexually suggestive conversation. Plaintiff asserts that the kiss was consensual, but he acknowledges that the kiss was inappropriate and he immediately apologized to the student several times. He then met with Conrath, disclosing that he was "sexually obsessive" and that he had had some involvement with a student, but that he had taken care of it. Twenty days later the student told Conrath that plaintiff had sexually harassed her. The charges were investigated. During this period Conrath made numerous references to his concern for plaintiff's mental health and commented that he thought plaintiff was "deeply troubled psychologically."
After his termination, plaintiff filed a grievance under the collective bargaining agreement of his union, the Maine State Teachers' Association. The union subsequently filed for arbitration under the
Plaintiff subsequently filed this lawsuit, claiming that he was terminated because of his "mental handicap of sexual addiction." The record contains evaluations of plaintiff's condition by three mental health professionals, two of whom diagnosed plaintiff's sexual addiction as Impulse Control Disorder Not Otherwise Specified, based on the Diagnostic and Statistical Manual of Mental Disorders (3d ed. rev. 1987). Both experts stated that the disorder led to plaintiff's termination, that the addiction is a permanent condition, that it was therefore unlikely that plaintiff would be hired in another teaching position, and that plaintiff is currently capable of performing his job as a teacher, including contact with students, without accommodation. The third expert testified that he does not believe that the Diagnostic and Statistical Manual is intended to be applied to sexual behavior, but even if it were, plaintiff would not meet the requisite criteria because plaintiff's behavior was controllable rather than compulsive.
The Superior Court granted a summary judgment in favor of defendants on all claims, ruling as a matter of law that plaintiff's claimed disability of impulse control disorder does not qualify him for protection under applicable laws protecting persons with disabilities from employment discrimination.
As a preliminary matter, we reject defendants' argument that the arbitrator's decision precludes the assertion of plaintiff's claim under anti-discrimination statutes and establishes conclusively that harassment occurred. Defendants cite Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991) for the proposition that employment discrimination claims may be the subject of binding arbitration when an employee agrees to arbitrate statutory claims.
Our analysis begins with section 504 of the Rehabilitation Act of 1973 (Act) that provides that: "[n]o otherwise qualified individual with a disability ... shall, solely by reason of his or her disability, be ... subjected to discrimination under any program or activity receiving Federal financial assistance." 29 U.S.C.A. § 794. A disabled individual is defined as one who: "(i) has a physical or mental impairment which substantially limits one or more of such person's major life activities, (ii) has a record of such an impairment, or (iii) is regarded as having such an impairment." Id. § 706(8)(B). The Department of Health, Education and Welfare promulgated regulations offering guidance on the scope of section 504. Those regulations provide that "mental impairment" is "any mental or psychological disorder, such as ... emotional or mental illness," 45 C.F.R. § 84.3(j)(2)(i)(B) (1992), and define "major life activities" to include working. Id. § 84.3(j)(2)(ii). The appendix to the regulations indicates that the Act should not be limited to traditional handicaps. 45 C.F.R. pt. 84, app. A at 377 (1992).
We next address whether a sexual impulse control disorder can constitute a legal disability under the Maine Human Rights Act (MHRA), 5 M.R.S.A. §§ 4551-4632. The provisions of the MHRA regarding mental disability are very similar to those contained in the Act. The MHRA prohibits the discharge of an employee because of a mental disability, except when based on a bona fide occupational qualification. Id. § 4572(1)(A) (Supp.1992). The MHRA defines "mental disability" as "any disability ... or mental condition caused by... illness, and includes the ... mental condition of a person that constitutes a substantial disability as determined ... by a psychiatrist or psychologist ..." Id. § 4553(7-A) (Supp.1992). The Maine Human Rights Commission has supplemented the statutory definition by regulation as follows: "1. An applicant or employee who has a `physical or mental handicap' means any person who has a physical or mental impairment which substantially limits one or more of such person's major life activities, has a record of such impairment, or is regarded as having such an impairment." Me. Human Rights Comm'n, Employment Reg. § 3.02(C)(1). The regulations also provide that the term `mental impairment' includes emotional illness, that `major life activities' includes working, and that one is `regarded as having an impairment' if the employer treats him as having an impairment and as being substantially limited by it. Id. § 3.02(C)(2). Finally, the regulations state that "the remedial provisions of the [MHRA] shall be given broad construction and its exceptions shall be construed narrowly." Id. § 3.01(C)(1). There is no explicit exclusion of sexual behavior disorders from the definition of a disabled individual.
We have stated that because the MHRA generally tracks federal anti-discrimination statutes, it is appropriate to look to federal precedent for guidance in interpreting the MHRA. Maine Human Rights Comm'n
Plaintiff next argues that he has a cognizable claim pursuant to 42 U.S.C. § 1983. Defendants counter that this claim must fail because neither MTCS nor CMTC are "persons" subject to suit under 42 U.S.C. § 1983.
In determining whether the state is the real party in interest we look to (1) the relationship between the state and the defendant to determine if the defendant is an alter ego of the state or if it is relatively autonomous; and (2) whether funds to pay a judgment would come from the state treasury. See 1 Joseph G. Cook & John L. Sobieski, Jr., Civil Rights Actions § 2.01(D), at 2-60.11, 2-60.14 (1990) [hereinafter Cook & Sobieski].
With regard to the first issue, the evidence demonstrates that MTCS and CMTC have an intimate relationship with the state and can reasonably be regarded as an alter ego of the state. The MTCS is created by Title 20-A M.R.S.A. § 12702 (1993) which provides as follows:
Members of the Board of Trustees are appointed by the Governor for four year terms and must be confirmed by the Legislature. Id. § 12705(2). The Commissioners of Education, Economic and Community Development, and Labor serve ex officio. Id. § 12705(1). The Governor and Legislature approve the system's budget prepared by the Board of Trustees which is "used in support of any requests to the Legislature for General Fund appropriations" needed to supplement other resources available to the system, and which is the basis of the system's fiscal management plan. Id. §§ 12706(4)-(4-A). The Maine Technical College System is also defined as part of the "State" for purposes of the Maine Tort Claims Act. 14 M.R.S.A. § 8102(4) (Supp. 1992). Although the System has the power to own and transfer real estate, any such transfers are subject to the approval of the Legislature. 20-A M.R.S.A. § 12706(13).
Plaintiff also asserts that because the MTCS has exclusive control over certain funds not received from the state, such as tuition payments and endowments, any judgment could be paid from these funds and the state treasury would not be implicated. We disagree. First, because almost all state agencies have access to non-state funds, this factor cannot be the determining one. Second, as a practical matter, even if a judgment were not paid directly with state funds, state appropriated funds would have to be used to replenish the funds expended.
Because payment of a judgment would interfere with the state's fiscal autonomy, and the MTCS is highly dependant on the state, we conclude that the state is a real party in interest.
Plaintiff finally argues that the complaint states a claim against Conrath individually pursuant to § 1983. We disagree. Contrary to plaintiff's contention, Conrath is shielded by qualified immunity from personal liability for his discretionary acts, including the termination of plaintiff's employment. See Anderson v. Creighton, 483 U.S. 635, 638, 107 S.Ct. 3034, 3038, 97 L.Ed.2d 523 (1987) (Generally, government officials performing discretionary functions have qualified immunity "shielding them from civil damages liability as long as their actions could reasonably have been thought consistent with rights they are alleged to have violated"). Qualified immunity protects "all but the plainly incompetent or those who knowingly violate the law." Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 1096, 89 L.Ed.2d 271 (1986). That is not the case here.
The entry is: