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Lavigne v. Dow Chemical

April 28, 2010


The opinion of the court was delivered by: Honorable Thomas L. Ludington


Plaintiff Kim Lavigne filed a complaint against Defendant Dow Chemical, Incorporated*fn1 on January 13, 2009, alleging claims for discrimination because of her gender in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e, and the Elliott-Larsen Civil Rights Act ("ELCRA"), Mich. Comp. Laws §§ 37.2101--.2804, and for retaliation in violation of Title VII, ELCRA, and the Michigan Worker's Disability Compensation Act ("WDCA"), Mich. Comp. Laws §§ 418.101--.941. The complaint alleges that she began work as a chemical process operator in Defendant's Midland, Michigan plant on August 15, 2007, and was terminated on March 12, 2008 because she was a woman who had complained about mistreatment and exercised her rights to disability compensation under the WDCA. Defendant's answer [Dkt. # 4] admits that Plaintiff worked at its Midland plant for about seven months. Defendant denies that Plaintiff's employment was terminated because of her gender, terminated in retaliation for taking WDCA leave, or terminated for reporting gender discrimination.

Following the close of discovery, Defendant filed a motion for summary judgment on February 19, 2010. Defendant contends in the motion that the decision to terminate Plaintiff's employment was made for legitimate, nondiscriminatory reasons. Defendant further contends that Plaintiff's work environment was not hostile to women, and that the decision to terminate her employment was not made in retaliation for her gender discrimination complaints or her use of WDCA leave. Indeed, according to Defendant, Plaintiff never received workers compensation benefits under the WDCA in the first place.

Plaintiff filed a brief [Dkt. # 37] in opposition to Defendant's motion for summary judgment on March 12, 2010. Plaintiff's brief includes a lengthy description of the facts she believes support her claims. Plaintiff also responds that she did in fact exercise her right to workers compensation under the WDCA, and she was terminated by Defendant in retaliation for exercising those rights. Plaintiff further asserts that she was treated differently than similarly situated male employees, and subjected to a hostile work environment on the basis of her gender. Ultimately, Plaintiff contends, her employment was terminated because of her complaints about gender discrimination and her exercise of WDCA rights.

The parties papers sufficiently describe the factual and legal issues necessary for determination of the motion, and the hearing initially scheduled for April 19, 2010 was canceled. E.D. Mich. L.R. 7.1(f)(2). For the reasons set forth in this opinion, Defendant's motion is GRANTED IN PART AND DENIED IN PART. Plaintiff's discrimination claims and WDCA retaliation claim will be DISMISSED WITH PREJUDICE, but material issues of fact remain as to Plaintiff's Title VII hostile work environment claim and Title VII and ELCRA retaliation claims.


The relevant facts, viewed in the light most favorable to Plaintiff, are described in detail in Plaintiff's complaint and excerpts from eleven deposition transcripts and other documents attached to the parties' papers. Plaintiff was hired in August 2007 as part of the "Fast Start" program and began training as a chemical process operator. She was eventually assigned to Defendant's latex plant in Midland. Pl.'s Dep. at 13. The Fast Start training was designed to last three months, and required employees to begin with two weeks in the plant, followed by eight weeks of "book study," including several tests. Pl.'s Resp. at 4; [Dkt. # 37]. Plaintiff completed the "Fast Start" portion of the training, passing all the tests, and was assigned to the latex facility in Midland along with fellow trainee Mike Monville, who started the "Fast Start" program at the same time as Plaintiff. Id.

When Plaintiff began at the latex plant, she was instructed to spend fifty percent of her time studying documents and instruction manuals and the other fifty percent of her time training on-thejob with her assigned trainer. Id.; Pl.'s Dep. at 21. Monville was assigned the same mix of classroom and on-the-job training at the latex plant. Pl.'s Dep. at 23. Plaintiff understood that Defendant expected her to complete the classroom portion of the training by August 2008, which included "hundreds" of different subjects and tests. Pl.'s Dep. at 25. For the on-the-job portion of her training, Plaintiff was initially assigned to work with Lance Williams, running a 15,000 gallon chemical reactor. Monville was assigned to a different trainer.

Kristie Murray, the only other woman working in the latex plant, was also in the training process and was assigned to train with Williams and Plaintiff. Pl.'s Dep. at 29. Murray started working for Defendant sooner than Plaintiff, but Murray was apparently having some difficulty completing the training process. Plaintiff stated at her deposition that she understood from Rick Lombardi, the head of the latex plant, that she was assigned to train with Williams and Murray in part because of Murray's difficulties. Pl.'s Dep. at 29. Plaintiff stated that Lombardi told her "we feel you came from the [United Auto Workers], you can handle these guys. These guys have been rejecting girls for years."*fn2 Pl.'s Dep. at 29. Plaintiff believed she was paired with Williams and Murray with the hope that Murray would finally be able to complete the training program. Pl.'s Dep. at 29--30. Murray has since been reassigned and no longer works in the latex plant.

From the beginning, Williams did not want to train Plaintiff. Pl.'s Dep. at 29--36; Williams Dep. at 18, 25; Gwizdala Decl. ¶ 2. Plaintiff asserts that he did not want to train her because she was a woman. She stated at her deposition that he would not train her:

Because females can't do the physical capabilities of the job he said, and that he wasn't going to waste his time with another female. He already wasted eight months with Kristie, he said, and he wasn't going to waste no more time with me. He said that I can follow him around, but not to ask any questions[.]

Pl.'s Dep. at 30. Defendant, by contrast, contends Williams was simply "burned out" on training. Williams Dep. at 18, 25; Gwizdala Decl. ¶ 2. Williams stated during his deposition that he did not "refuse" to train plaintiff, but he did "request . . . to stop training personnel for awhile because I had just gotten burnt out on training people." Williams Dep. at 18.

Two weeks into Plaintiff's training at the latex plant, Williams stopped acting as her trainer. Lombardi directed Plaintiff to focus on the book-work aspect of her training until a new trainer could be found. Pl.'s Dep. at 42--43. Plaintiff indicated that it took between two and three-and-a- half weeks to find a new trainer, during which time she completed two of the three books required for the classroom training. Pl.'s Dep. at 43. After the period without a trainer, Plaintiff resumed onthe-job training when new trainer Jeff Shannon was transferred from the evening shift to the day shift to facilitate her continued training. Pl.'s Resp. at 10--11. Shannon was an experienced supervisor with other companies, but Plaintiff was the first person he trained at Dow's Midland facilities.

Despite early difficulties finding a permanent trainer, Plaintiff's classroom training proceeded according to the schedule set by Defendant. On January 8, 2008, Steven Robb, a supervisor in the latex plant, sent Plaintiff an e-mail indicating her "progress [was] on track for successful completion of" the book-work portion of the training. [Dkt. # 37-10]. At that same time, however, Plaintiff's supervisors and trainers were growing concerned about her progress toward completion of the on-the-job portions of the training. Shannon, who had been working with Plaintiff for about six weeks, met with Robb on January 10, 2008 and explained that he was concerned about Plaintiff's ability to pay attention and get along with other operators. Shannon also told Robb that he was frustrated with her lack of interest in learning the job. Gwizdala Decl. ¶ 4; Shannon Dep. 98--100; Robb Dep. 14--15, 47--49. Shannon and Robb planned to meet with Plaintiff during her next shift to discuss their concerns about her training progress. The January 10 meeting was the first time that Robb was made aware of any performance issues regarding Plaintiff. Robb. Dep. at 15. His meeting notes reflect the concerns expressed by Shannon during the meeting. Id. Ex. 49.

On the same day that Robb and Shannon met to discuss Plaintiff's on-the-job training, Plaintiff was exposed to recycled oil when it leaked from a pipette onto her arm. Pl.'s Dep. at 69--73. Plaintiff, wearing gloves and safety goggles, removed oil from the reactor into a small jar, carried the jar to a ventilated testing hood, and proceeded to remove some oil from the "little jar" with a pipette and insert it into the "little tiny, tiny vial" used to test the oil. Id. at 70--71. When she attempted to transfer the oil from the pipette to the vial, some of the oil "squirted" on her forearm and ran down underneath her glove onto her hand. Id. at 71--72. After she was exposed to the oil, she immediately removed her glove, went to the sink, and began to run water over the exposed area. Id. at 72--75. She immediately called for help from Shannon, who was nearby, but he did not assist her or call for help. Id. Steve Blair, the lead operator on the shift, came to her aid "right away." Id. at 75--76.

Blair directed Plaintiff to flush the area for twenty minutes with water, instructed her that calling for an ambulance would be unnecessary because employees in the latex plant "get that stuff on us all the time," and told her to finish her shift. Id. at 76. Blair's decision to forgo calling an ambulance was contrary to Defendant's policies. Initially, Plaintiff was fine, but by the end of her shift one hour later she was beginning to feel "a little bit dizzy." Id. Plaintiff went home and slept for twenty-four hours. Id. at 83--84. She woke up the next day feeling ill. Her symptoms included low blood pressure and heart rate, slurred speech, fatigue, congestion, cough, dizziness, and swollen glands. Id. at 83--86; Gratiot Medical Center Patient Visit Record; [Dkt. # 31-B]. Two days later, Saturday, January 12, 2008, Plaintiff called her supervisors and informed them she was too ill to come to work. She went to the emergency room instead. [Dkt. # 31-B & C]. The medical records indicate a probable diagnosis of a sinus infection or "viremia," referring to the spread of a virus through a person's bloodstream. The medical records do not mention chemical exposure as a possible cause of the illness.

On January 15, 2008, Plaintiff contacted nurse Charlotte Atton, an employee in Defendant's medical department, and indicated she had been exposed to recycled oil and believed it to be the cause of her illness. Pl.'s Resp. at 15. On January 17, 2008, Plaintiff called Brian Vallieu, an employee in the latex plant who had recently become Plaintiff's direct supervisor, and informed him of her illness and her belief that it was caused by exposure to recycled oil. Id. Plaintiff was cleared by the nurse and returned to work halftime on February 4, 2008. Pl.'s Dep. Ex. 3. The day she returned, she met with Robb to discuss her training issues, issues related to her exposure to chemicals, the cause of her illness, and problems with unfair treatment by male employees. [Dkt. # 37-14]. She told Robb that she was "always exposed to chemicals" and that she believed chemical exposure had caused her illness. She also told Robb that she believed she was being singled out and mistreated by male employees, citing as examples Williams' refusal to train her because she was a woman; her reassignment to Shannon, who was an inexperienced trainer; Lombardi's comments about the difficulty women had experienced at the plant in the past; and generally rude behavior from the male employees at the plant. Among other instances, Plaintiff asserts that both she and the only other female employee in the plant were called a "bitch" and belittled for being "on the rag." That employee, Murray, agreed that the treatment was rude, but suggested it was directed at new employees generally, and not at women in particular. Murray Dep. at 15--17.

Shortly after returning to work, Plaintiff also met with Vallieu and a safety expert to discuss the oil spill, and to look for solutions to guard against future spills. Vallieu Dep. at 70--71. Plaintiff reiterated during the meeting that she was repeatedly exposed to chemicals while working in the latex plant. Id. As a result of the investigation into the oil exposure, Blair was disciplined for not calling an ambulance after Plaintiff was exposed to the oil. Id. at 58--59. For his part, Vallieu expressed concerns that repeated exposure might indicate Plaintiff was not performing tasks in accordance with the recommended procedures, creating dangerous situations that could be avoided. Vallieu Decl. ¶¶ 2, 6, 7.

On February 12, 2008, Vallieu also followed up on an e-mail Plaintiff had sent to her previous supervisor, Lombardi, on January 7, 2010. Pl.'s Dep. Ex. 2. In the January e-mail, Plaintiff expressed concerns about the capacity of a hoist used to move "MAM bags" in the plant. Id. She stated that the hoist was rated at "2000lb max and the mam bags are 2000lbs or better[.]" Id. Lombardi instructed a third employee to look into the issue, and praised Plaintiff for noticing the potential problem. The third employee replied on January 8, 2008, indicating the bags were labeled at 520 kilograms, which is about 1,150 pounds. Accordingly, the hoist had ample capacity. Vallieu's February 12 e-mail explained that the hoist had plenty of capacity for the "MAM" bags and encouraged Plaintiff to continue to be vigilant and make safety "observations." Vallieu Dep. Ex. 26. But the e-mail also directed Plaintiff to work toward becoming "an active part of the solution" as ...

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