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Schram v. Dow Corning Corp.

United States District Court, E.D. Michigan, Southern Division

January 8, 2018

SHARON SCHRAM, Plaintiff,
v.
DOW CORNING CORPORATION, Defendant.

          OPINION AND ORDER DENYING MOTION FOR SUMMARY JUDGMENT

          DAVID M. LAWSON UNITED STATES DISTRICT JUDGE.

         Plaintiff Sharon Schram filed a complaint alleging that she was illegally forced out of her job at defendant Dow Corning Corporation after having worked there for nearly thirty years. Her termination, she contends, was in retaliation for exercising her rights under the Family and Medical Leave Act (FMLA) and the state's workers' compensation laws, and amounted to gender and disability discrimination. Dow Corning has moved for summary judgment, contending that Schram's separation was for performance issues, and the record does not support Schram's claims. But a fair reading of the record at this stage of the case, which requires viewing the evidence in the light most favorable to the plaintiff, yields plenty of evidence supporting the four counts Schram pleaded in her second amended complaint. The motion for summary judgment, therefore, will be denied.

         I. Facts and Proceedings

         The basic facts of the case are not unique. Within several months after Schram changed positions within the company and began reporting to a new supervisor, she was removed from her latest position - despite very good performance evaluations - and ultimately terminated from a temporary position to which she was reassigned. Her poor treatment at the hands of the company, she says, began after she was injured on a business trip and took time off on her doctor's advice for treatment of a detached retina. She sought to have her medical bills paid by the company. She says that when she returned to work, her supervisor questioned whether she still could do the job. Her position was backfilled by a male, who was paid $40, 000 more per year for doing the same work. Her second amended complaint includes counts titled as FMLA retaliation, disability discrimination under Michigan law, retaliation under Michigan's Worker's Disability Compensation Act, and gender discrimination under Michigan's Elliott-Larsen Civil Rights Act.

         The facts of the case are complex and the record is sizable. A summary - a lengthy one - follows.

         A. Plaintiff's Career at Dow Corning, 1991-2013

         In May 1986, plaintiff Sharon Schram started her career with the Dow Corning Company working as a contract employee in the information systems management division. In January 1991, she was hired into a permanent position as a program analyst. She was promoted and worked for the company in various roles until her last position was eliminated and she was “forced to retire” in 2016. She holds a bachelor's degree in marketing management, and in 2001, while working for Dow Corning, she earned an MBA degree from Northwood University. Schram testified that she “excelled” as a system analyst and was “sought ought” by various business units within the company for her assistance with implementing technology systems such as the enterprise management package “SAP” in different divisions.

         In 2001, Schram took on a new role as a product market coordinator. She continued to work in marketing roles for approximately ten years; and by 2008 she was responsible for more than $1 billion in sales of various products to customers in “aviation, mold making, electronics, and several other markets.” All of Schram's marketing experience was in the segment Dow Corning refers to as “Industrial Assembly and Maintenance” or “IAM.” Among other things, Schram developed market plans, built relationships with customers and distributors, and worked with manufacturing divisions to make sure that products were appropriately priced and profitable. Schram was responsible for more than 2, 000 products sold through 200 distribution partners to more than 1, 000 customers. In 2009, Schram was asked by Dow Corning's Chief Marketing Officer to apply her business and systems expertise to a new role as a “business center analyst, ” which she performed from 2009 through the end of 2013. During that time Schram was promoted from “level 4” to “level 5.” She also received annual pay increases that were based in part on her performance.

         B. Reprise of the IAM Regional Marketer Role, 2014

         In December 2013, Dow Corning manager Joy Govitz contacted Schram by email and wrote that she had been given Schram's name as a candidate to fill one of several openings in the marketing organization. At the time Schram was “perplexed” by the inquiry, but not “surprised, ” since she “had been sought out for nearly every role [she] had in Dow Corning.” Govitz implored Schram to accept the position, telling her during phone conversations that “[w]ith your skill set, you would be perfect for this role, ” “you've done this job for 10 years, ” and “I really want you to take [the job].” Govitz also told Schram that she already had secured approval from Schram's supervisor for the reassignment. However, Schram was not interested in moving to another position at the time, and she told Govitz as much. Nevertheless, Govitz persisted, first telling Schram that she could not go on vacation until the position was filled, and then warning Schram (falsely) that Schram's position in the business center was being eliminated and she would not have a job if she did not accept the reassignment. Govitz also told Schram that she and her husband, who evidently also worked for Dow Corning, would “make [Schram's] life miserable if [she] did not take this role.” Finally, on December 18, 2013, after her third phone call with Govitz, Schram reluctantly accepted the position. Later, after the holidays, Schram spoke with her supervisor in the business center, who told Schram that she supported the move, but that Schram's job was not being eliminated and she did not have to accept the reassignment if she didn't want to. Schram's supervisor told her she did not want Schram to leave because she was a “great worker” and a “high performer.”

         Schram testified that during her tenure in the business center, there had been a lot of turnover in the IAM “market leader” role to which she was returning, and she felt she was “starting over, ” tasked with recovering significant losses in market share and customer relations that had resulted from “inconsistent” efforts by the interim tenants of the position. Even before Schram returned to the market leader position, she had received a number of calls over the years from distribution partners and customers with whom she maintained relationships, asking her if she would consider returning to the role to get things back on track. Schram had reservations about the lack of direction within Dow Corning with respect to IAM marketing, but she began her work from a “blank sheet” over her holiday vacation in 2013, preparing a market plan, which she discussed with Govitz. Schram noted that the IAM marketing function had not had such a plan in place since she left the market leader role in 2009.

         By the end of January, Schram had “completed a market plan for the following year, ” and she “received kudos” from Govitz for her efforts. Despite her misgivings about how Govitz had recruited her into the role, Schram decided to “move on, ” and she felt that she and Govitz got along well. Schram said she thrived in her reprised role, working with “stakeholders” in other divisions throughout the company, and in several instances she was asked by the “global segment leader” for IAM marketing to lead global marketing efforts. Schram often traveled with Govitz, and they met at least monthly to discuss the projects that Schram was working on and her progress on them. Schram and Govitz also often met socially for lunch or to have drinks after hours.

         On her mid-year review for 2014, Govitz wrote of Schram's performance: “Sharon transitioned into this role during Q1. She was immediately asked to pull together a 4P Plan for North America and South America markets. She did a great job working with the respective individuals to meet the requirements. Critical for H2 is the channel project.” However, Govitz also wrote in Schram's review that Schram would “need to ensure that her past experience within the segment does not heavily influence her thoughts to drive a quick decision or hinder her ability to be open minded, ” and that a white paper Schram had prepared “did not represent information based on unbiased facts, ” and “[g]oing forward, [Schram] will need to ensure team input/consensus and [that] factual information is shared to build [a] final business case; otherwise, the work presented will not be deemed credible.” Schram felt those criticisms were unfair or unfounded, because Govitz had told Schram she wanted her to return to the role because of her previous experience doing the job. Moreover, the white paper in question had been completed months before, with revisions and comments by Govitz, and Govitz had approved the final draft. Schram also was confused by the negative comments in the review, because during the month when she was reviewed, Govitz was “telling me I'm her rockstar.”

         C. Plaintiff's Eye Injury and Medical Leave

         On August 14, 2014, Schram was on a flight from Bay City, Michigan to Dallas, Texas. While she was disembarking for a layover in Detroit, another passenger on the flight “yanked down” a bag from an overhead compartment, which fell and struck Schram on the left side of her forehead, just above her brow. The blow hurt, but Schram initially “didn't think twice about it.” When she arrived in Dallas, Schram proceeded as scheduled and met with two of her customers; however, at lunch one of her customers told Schram “there's blood in your eye, ” which sent Schram to a bathroom where she confirmed that she could see it in the mirror. She proceeded on another flight to Houston, Texas, arriving around midnight, and in the morning she noticed that the spot of blood in her eye was gone. During her travel back to Midland, Schram noticed while looking out the window of the plane that there were “floaters” in her field of view that were not present before.

         On the evening of September 7, 2014, Schram noticed a “flash” in her vision, which quickly dissipated. She continued working to wrap up a presentation she was scheduled to give the next day and did not think any more about it. Schram made her presentation to the leadership team the next day, and got “rave reviews.” However, after the meeting, Schram called her optometrist and told him something seemed wrong with her eye; he scheduled an appointment for her to be seen a week later on September 17th. After examining Schram, the optometrist told her that she had a retinal detachment, and he referred her for a same day follow up with an ophthalmologist, who confirmed the diagnosis. The second doctor told Schram she would need emergency surgery to repair the detachment, or she could lose the vision in her left eye.

         After she was scheduled for surgery the next day, Schram went out to her car and called Govitz on her cell phone; she informed Govitz she needed emergency surgery to correct a retinal detachment. Govitz replied, “You're not going to pin this on me, ” which Schram interpreted as concern that the injury would be a topic at the next company safety meeting, since Schram previously had informed Govitz that she suffered a blow to the head while on her Dallas trip (before Schram was aware that she had a retinal detachment). Govitz told Schram that she had “objectives to complete” and that she should “postpone the surgery.” Schram responded that she could not postpone it because she could go blind if the detachment was not repaired, and Govitz replied, “I don't think so.” Schram told Govitz she would let her know more details about her condition after the surgery, and she went ahead with the treatment the next day. After the surgery, Schram was transported home and was “incapacitated” for several days, since she had no vision in her left eye for “more than a week, ” and had frequent doctor's appointments to treat the detached retina.

         Despite her condition, Schram sent an email to Govitz later on September 18, 2014, informing Govitz that she had no vision in her left eye and would be unable to drive until September 29. Schram also stated that she had her computer at home but would have only limited use of it due to her restricted vision. Govitz responded on the following Monday, writing: “Thanks, Sharon, for letting me know. I hope recovery is going well. I'll see you when you get back.” Schram subsequently provided a doctor's note to Govitz indicating that she could not return to work until the 29th.

         Despite her reduced vision and limited ability to use her laptop computer, Schram testified that she was able to work from home, and that she “met her commitments” while she was off from work for recovery. Schram logged 10 days of leave, which she considered to be “sick days” and which were reported as such. Schram testified that she had taken FMLA leave in the past for the birth of a child, and she knew how to request FMLA leave, but she could not recall whether she requested it for her surgical recovery. She was sure, however, that Govitz never offered her the option of FMLA leave. Nobody at Dow Corning ever indicated to Schram that they considered her to be on FMLA leave before she returned to work; however, the only person Schram communicated with about her surgery was Govitz. Schram had follow-up appointments with her surgeon “daily” at first, and then every other day, until her final visit sometime shortly before she returned to work.

         On September 26, 2014, Schram had a follow-up appointment with her surgeon, who discovered that the “bubble” in her retina had not fully subsided. He told her then that she could not return to work until October 6. Schram emailed Govitz to inform her of the extended leave, which “upset Joy considerably, ” because it meant that Schram would miss an important global marketing meeting that was set for the day she was to return. Govitz told Schram that if other people who were traveling to attend the meeting from as far away as California could make it, then Schram could make it too. However, despite her absence from the global meeting, Schram attended all of her other scheduled commitments, such as teleconference meetings; for one of those events she “received . . . kudos from the field [for being able] to step in” and provide needed information to distributors. On October 6, 2014, Schram returned to work as scheduled.

         Schram says her vision mostly has returned to normal, but she still cannot drive at night because she sees “halos” around lights. She also can't participate in recreational activities that she used to enjoy, like snow skiing and water skiing, since she must avoid the risk of a repeated injury to her eye.

         D. Plaintiff's Return to Work

         Schram testified that her return to work was “seamless, ” and “[m]ost people [she] worked with were not even aware that I missed a beat.” Govitz asked Schram when she returned to work if Schram would be able to do her job, and Schram stated that she would, “absolutely.” However, after Schram returned to work, Govitz no longer met with her monthly as previously scheduled, and Schram no longer was included in or invited to social events that Govitz and other co-workers attended. Govitz repeatedly gave excuses to avoid meeting with Schram, including one time when she had a “family emergency, ” which evidently meant that Govitz needed to leave work to have her hair dyed from blonde to brunette. Schram tried repeatedly to discuss her work with Govitz, but Govitz still refused to meet with her. She also tried to meet with Govitz's superior, Diane Kelly, who declined and told her that Govitz was her manager and Schram should meet with her instead. Shortly after Schram returned to work, Govitz also moved Schram from her 15' x 20' office with a “courtyard view” to a 6' by 6' cubicle “next to the co-ops.” Govitz also told Schram on the day she returned to work that she was “selected to do a drug test today, ” which would occur in one hour. Govitz also frequently questioned Schram's work activities, asking her repeatedly why she was meeting with specific people or spending time on certain tasks.

         After six to eight months, Schram's vision returned to near normal. During that period, she had some problems at work navigating stairs, due to her limited depth perception, and she requested a large monitor so that she could see her computer better when working at her desk. However, Govitz was uncooperative when Schram requested a larger monitor. On October 10, 2014, Schram was in a group meeting with co-workers and Govitz, and, while sitting across the table from Schram, Govitz said, “Do you see me here? Here I am. Sharon, I'm over here.” Schram felt that those comments were “inappropriate” for a manager to make.

         E. Plaintiff's “Redeployment”

         Meanwhile, it appears that within a couple months after Schram returned to work, discussions were underway to replace her with a male, Gifford Shearer, from another Dow subsidiary. From the testimony, it appears that none of the Dow Corning supervisors are ready to take responsibility for that decision.

         Diane Kelly, who was Govitz's superior in the marketing organization, testified that she decided in early 2014 that she would retire from Dow Corning in March 2015. Kelly was replaced by Christian Velasquez. Kelly testified that she was aware that “there were discussions in regard to possibly how we would backfill the position” left open by Schram's impending “redeployment, ” and that Velasquez was part of those discussions. However, Kelly did not make the “final decision” regarding Schram's replacement, since she was in the process of retiring; the final decision, according to Kelly, was made by another Dow Corning manager named Eve Luo. Kelly testified, however, that she had been aware in 2014 that Schram was out on a medical leave due to her eye surgery.

         Christian Velasquez testified that he worked as a market director for Dow Corning or Dow Chemical for 25 years. He took over Kelly's role in January 2015 and supervised her former staff for three or four months. Velasquez had “some discussions” with Kelly about “placing [Shearer] in the position . . . of NA IAM marketing, ” but he asserted that the “final decision” was Kelly's, not his. However, Velasquez conceded that he had “some input” on the decision.

         Velasquez testified that he knew Gifford Shearer (Schram's replacement) for around 10 years. Before 2015, Shearer worked for “Multibase, ” which is a wholly-owned subsidiary of Dow Corning. Velasquez stated that Shearer was at the time looking for a new position since his job duties at Multibase were being split and assigned to other staff there. Velasquez admitted that Shearer assumed all of the duties of Schram's former IAM position after Schram left. Shearer also was designated in Dow Corning's HR system as a “regional marketer, ” which was the same job title Schram had held. Velasquez testified that Shearer was paid more than Schram after his reassignment because, in addition to taking over Schram's duties, he also still “had some obligation in the management of Multibase, ” where he formerly had been the president. However, the carryover of duties from Multibase evidently was short-lived, because Velasquez admitted that Shearer's Multibase tasks ended within six months after he was assigned to the IAM position at Dow Corning.

         Velasquez authenticated an email that he was copied on, which was sent to Eve Luo, who was a marketing director at Dow Corning, reporting to the Chief Marketing Officer, Dan Futter. In that email, dated November 14, 2014, Luo was asked by another Dow Corning Manager, Philippe Nobels, if Luo thought that Schram would be a good candidate for a customer service position, indicating that “[a]s we discussed, we would like to free up Sharon and have someone to take the NA IAM marketing role.” Later that same day, Luo replied to the email chain, writing to Nobels, “What you're suggesting for the next steps, can you please work with Joy [Govitz] to proceed it? Thanks.” The next morning Nobels replied to Luo, writing, “No direct action for now. I will continue to follow up with HR colleagues.”

         The “next steps” toward replacing Schram likely commenced soon after the mid-November email exchange, because on December 11, 2014, Shearer emailed Dow Corning's Human Resource Service Center and asked for a copy of Dow's relocation policy and asked how far in advance he could begin the process of arranging for relocation benefits. The response to Shearer indicated that he would be allowed to initiate the relocation process after he accepted an offer for a job with Dow Corning. Another email from Shearer to the human resources department stated: “Thanks, Shannon, I have asked my manager to confirm when he wants to start the process.” (emphasis added). Velasquez asserted that he could not recall whether he or Kelly made the offer to Shearer, but he conceded that Shearer's message referring to the manager as “he” signaled that Shearer had consulted with Velasquez about the relocation approval. In a subsequent email on February 2, 2015 from Shearer to Joy Govitz, Shearer asked Govitz if he should fill out the “relocation web form” to “kick off the process, ” and he also wrote that he needed to know “my new cost center” (the accounting unit to which his position was assigned).

         It is clear from the record that Schram was not informed of any of these machinations. The plaintiff submitted another email string from mid-December on which Nobels, Velasquez, Govitz, and Dow Corning Human Resources staffer Melissa Dabrowski were copied. ...


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