Lucia Gason v. Dow Corning Corporation

Filing

OPINION filed : AFFIRMED. Decision not for publication. Danny J. Boggs, Ronald Lee Gilman (AUTHORING), and Bernice Bouie Donald, Circuit Judges.

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NOT RECOMMENDED FOR PUBLICATION
File Name: 16a0011n.06
Case No. 16-1443
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

FILED
LUCIA GASON,
Plaintiff-Appellant,
v.
DOW CORNING CORPORATION,
Defendant-Appellee.

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Jan 06, 2017
DEBORAH S. HUNT, Clerk

ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF
MICHIGAN

OPINION

BEFORE: BOGGS, GILMAN, and DONALD, Circuit Judges.
RONALD LEE GILMAN, Circuit Judge. Lucia Gason, a citizen of Belgium, is an
employee of Dow Corning Corporation. After working for Dow Corning’s European affiliate in
Belgium for 14 years, she utilized a series of temporary visas to work for Dow Corning in the
United States, starting in 2007. Gason accepted a permanent assignment in 2012 with Dow
Corning’s Michigan office. Approximately two years later, however, Dow Corning ceased to
sponsor her application for legal permanent residence (a green card), terminated her employment
in the United States, and relocated her to a position back in Belgium.
This prompted Gason to file suit against Dow Corning based on the theories of fraudulent
misrepresentation, promissory estoppel, and breach of contract. The district court granted Dow

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Corning’s motion for summary judgment. For the reasons set forth below, we AFFIRM the
judgment of the district court.
I. BACKGROUND
A. Factual background
1. Gason’s promotion
Dow Corning, which produces silicone and silicone-based products, offered Gason a
promotion to a director position at its Michigan office in 2011. Accepting the offer meant that
Gason would forfeit her Belgian contract, which included a substantial pension plan and several
other valuable benefits. The offer, however, included a variety of its own benefits, such as
relocation allowances, storage, housing payments, tax assistance, and a pension. The offer also
meant that Gason would be on permanent rather than temporary assignment in the United States.
Two Dow Corning employees, Heidi Landry-Chan and Peggy Gerstacker, had
discussions with Gason about the offer of a director position in Michigan. According to Gason,
Landry-Chan “mentioned localization” (meaning the transfer to a permanent assignment in the
United States) during this conversation, but neither Landry-Chan nor Gerstacker used “the words
‘green card’ . . . [or] the term ‘permanent residency.’”

Gerstacker nonetheless later

acknowledged in a deposition that “when somebody localizes, . . . we always tried to get them a
green card.” Dow Corning’s Relocation Administrator Kim Butler confirmed that “localization
necessarily includes Dow Corning sponsoring that employee for a green card.”
Dow Corning did not, however, promise Gason that it would maintain her employment
indefinitely after she “localized” in Michigan.

To the contrary, Gason was informed, and

understood, that localization necessarily entailed the termination of her Belgian contract and the
commencement of her employment under Dow Corning’s terms and conditions of United States

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employment. Those conditions included the fact that her employment would be “at will” and
could be terminated with or without cause at any time.
In February 2012, Gason accepted the offer to localize in Michigan. She purchased a
home in Midland, Michigan and became the Director of Indirect Capital Procurement for Dow
Corning.
2. The green-card process
Obtaining a green card is typically a lengthy process. The most important aspect for
purposes of this appeal is the employer’s submission of certain materials into a Program
Electronic Review Management (PERM) application. An employer sponsoring an employee for
a green card must satisfy the government that there are no United States citizens who could
perform the job equally well. To carry out this requirement, a sponsoring employer must submit
a series of documents, including a description of the job, minimum job requirements, evidence
that the sponsored employee meets those requirements, and a prevailing-wage determination
from the Department of Labor (DOL), the latter being an approximation of how much the worker
would be paid according to prevailing wage rates. The employer must then solicit applications
from United States citizens and interview every applicant who appears to be qualified. Once
these steps are complete, the employer must attest to the DOL in a PERM application that no
United States applicant was qualified for the job.
The DOL typically audits a PERM application when the job requires 10 years or more of
experience, as Gason’s did.

This usually extends the amount of time that the green-card

application process can be expected to take.
Dow Corning retained the Fragomen law firm as outside counsel to assist with Gason’s
green-card application after she localized. In order to finalize the paperwork before soliciting

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job applications from United States citizens, Fragomen needed a variety of documents from Dow
Corning and Gason. Dow Corning’s relocation specialist, Ranae Ratajczak, began the process of
producing and compiling these documents. She emailed the PERM questionnaire to Gason in
August 2012, requesting that she complete and return it. When Gason did not do so, Ratajczak
sent follow-up requests to Gason in September 2012, October 2012, and February 2013. Gason
never replied.
While Ratajczak’s requests were pending with Gason, Dow Corning commenced a
restructuring program in late 2012. Gason’s position as Director of Indirect Capital Procurement
was eliminated as part of the restructuring, but she accepted an offer to begin work as a
Procurement Shared Services Manager. This role was substantially different from her directorial
role and had a variety of duties distinct from her former position. The PERM application process
consequently needed to start anew to reflect her new position.
By September 2013, Dow Corning had finalized the new job description for Gason’s
managerial position and sent it to Fragomen. Ratajczak followed up by sending Gason a new
PERM questionnaire later that same month for Gason to complete.

Gason again did not

promptly respond with the completed questionnaire. Ratajczak consequently sent reminder
emails on October 9 and 16, 2013. Gason finally returned the completed questionnaire on
October 18, 2013. Fragomen then furnished Dow Corning with a draft of the PERM master
document, but Gason delayed roughly two months from early December 2013 to late January
2014 in providing the information that Fragomen needed for the finalized master document.
Fragomen next requested that Dow Corning complete the chart necessary to document
Gason’s job requirements, which was a necessary component of the PERM application. Gason
asked Ratajczak to complete the chart in February 2014, but Ratajczak informed Gason that this

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was something that Gason needed to do because completion required knowledge of Gason’s
professional background. Ultimately, Gason completed and updated the requirements chart and
the finalized master document in April 2014, after Ratajczak’s coworker sent a message to
Gason stating that “[t]iming is becoming a critical issue in this matter. Your prompt response is
needed.”
In May 2014, Fragomen requested a prevailing-wage determination from the DOL. Dow
Corning published the required postings in August 2014, after receipt of the wage determination.
3. Gason’s demotion
Gason’s leadership and management style was the subject of criticism from members of
her team during the course of the green-card application process. In September 2014, roughly
one month after Dow Corning finally posted its job advertisement for purposes of Gason’s
PERM application, Dow Corning terminated Gason’s employment as the Procurement Shared
Services Manager. Gason’s supervisor informed Gason that the green-card application process
would end, and he offered her a position as a manager in Belgium beginning in 2015.
About one month before Gason’s termination, Relocation Administrator Kim Butler
wrote to Fragomen that she wanted the firm to “hold off doing anything further on the Lucia
Gason matter. . . . [T]here is discussion surrounding the possibility of sending Lucia back to
Belgium.” Butler implied that the firm should refrain from revealing this information to Gason
at the time.
B. Procedural background
Gason filed her first complaint and a motion for a preliminary injunction to prevent her
transfer to Belgium in March 2015. She asserted claims of retaliation related to discrimination

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on the basis of her ancestry and ethnicity. The district court denied her motion for a preliminary
injunction.
Gason filed an amended complaint in April 2015, alleging the claims currently at issue on
appeal. She contends that Dow Corning made fraudulent misrepresentations concerning her
application for a green card, that those misrepresentations made Dow Corning liable to her on a
theory of promissory estoppel, and that Dow Corning’s failure to obtain a green card for her
constituted a breach of contract. In support of her claims, Gason asserted, in part, that Dow
Corning “offered Gason a promotion . . . , which necessarily included a Green [C]ard to be
secured by the Company for Gason”; that Dow Corning “promised that it would obtain for
Gason a Green [C]ard”; that Dow Corning “never intended to pursue a Green Card on behalf of
Gason or learned shortly after its promise that it would not in fact attempt to secure the Green
Card”; and that Dow Corning’s “failure to disclose would create a false impression that it was in
fact [pursuing] a Green Card for Gason.” The parties later jointly stipulated to the dismissal of
the retaliation and discrimination counts, leaving only the fraudulent-misrepresentation,
promissory-estoppel, and breach-of-contract claims.
Dow Corning moved for summary judgment. It argued that Gason’s fraud claim must
fail because Dow Corning never promised to obtain a green card for her; that her promissoryestoppel claim must fail because whatever Dow Corning promised Gason was insufficiently
specific under Michigan law to render the promise enforceable; and that her breach-of-contract
claim must fail because no contract was ever formed. The district court granted Dow Corning’s
motion. In its order, the district court concluded that there was no evidence upon which a
reasonable juror could find that Dow Corning represented to Gason that it would obtain a green
card for her; that whatever promise Dow Corning did make to Gason was insufficiently specific

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as a matter of law to trigger liability under a theory of promissory estoppel; and that no evidence
existed upon which a reasonable juror could find that Gason and Dow Corning “mutually agreed
that Dow would obtain a Green Card for her.” This timely appeal followed.
II. ANALYSIS
A. Standard of review
We review de novo a district court’s decision to grant summary judgment. Constr.
Contractors Emp’r Grp., LLC v. Fed. Ins. Co., 829 F.3d 449, 453 (6th Cir. 2016). Summary
judgment is proper when “the movant shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “We draw
all reasonable inferences and construe all evidence in favor of the nonmoving party.” Constr.
Contractors, 829 F.3d at 453.
B. Fraudulent-misrepresentation claim
Under Michigan state law, fraudulent misrepresentation has the following six elements:
1.
2.
3.

4.
5.
6.

The defendant made a material representation.
The representation was false.
When the defendant made the representation, [the
defendant] knew that it was false, or the defendant made
the representation recklessly, without any knowledge of its
truth, and as a positive assertion.
The defendant made the representation with the intention
that it should be acted on by the plaintiff.
The plaintiff acted in reliance on the representation.
The plaintiff suffered injury due to his reliance on the
representation.

Hord v. Envtl. Research Inst. of Mich., 617 N.W.2d 543, 546 (Mich. 2000) (per curiam).
Michigan law also recognizes “silent fraud” as an actionable claim for fraudulent
misrepresentation, “since ‘a suppression of the truth may amount to a suggestion of falsehood.’”
U.S. Fid. & Guar. Co. v. Black, 313 N.W.2d 77, 88 (Mich. 1981) (quoting Stewart v. Wyo. Cattle

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Ranche Co., 128 U.S. 383, 388 (1888)).

“In order for the suppression of information to

constitute silent fraud[, however,] there must be a legal or equitable duty of disclosure.” Id.
Gason’s claim of fraudulent misrepresentation can be divided into two parts. She first
contends that Dow Corning affirmatively and fraudulently promised to sponsor her green-card
application during their conversations about her promotion to a management position in 2011.
Second, Gason claims that Dow Corning committed silent fraud when it did not inform her that it
intended to cease its efforts to sponsor her green-card application in 2014.
Although Dow Corning raises several arguments against the first part of Gason’s
fraudulent-misrepresentation claim, one argument disposes of the matter in a single stroke—
there is no evidence in the record that Dow Corning, at the time it represented to Gason that her
promotion would include localization in the United States (and thus sponsorship through the
green-card application process), actually “knew that [the representation] was false.” See Hord,
617 N.W.2d at 546. In fact, the undisputed evidence establishes that Dow Corning went to
considerable length to support Gason’s green-card application: it retained outside counsel,
followed up on unanswered requests for Gason to complete certain documents, and regularly
facilitated conversations between Gason, Fragomen, and Dow Corning’s own relocation
specialists to ensure that the green-card application process was moving along.
On its face, Gason’s amended complaint asserts that Dow Corning promised Gason to
obtain a green card for her. Indeed, the district court granted summary judgment to Dow
Corning principally on the basis that there was no evidence of such a promise:
While Dow did agree to localize Gason in the United States, there
is no evidence that Dow represented to Gason that it would obtain
a Green Card for her as part of that process. At most, by localizing
Gason[,] Dow agreed to begin the process of sponsoring her for a
Green Card. . . . The fact that Gason thought Dow was promising
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to obtain a Green Card for her does not affect this analysis because
“[a] plaintiff’s subjective misunderstanding of information that is
not objectively false . . . cannot mean that a defendant has
committed . . . fraudulent misrepresentation.”
Gason v. Dow Corning Corp., 170 F. Supp. 3d 989, 997 (E.D. Mich. 2016) (quoting Hord, 617
N.W.2d at 549)).
A promise to obtain a green card for Gason would have been impossible for Dow
Corning to carry out because Dow Corning cannot issue green cards. The most that Dow
Corning could have promised Gason—impliedly through offering her a localized position in the
United States—was to sponsor her in the green-card application process while she remained
employed in a localized position. Dow Corning in fact carried out that promise. Moreover, there
is no evidence that, at the time Dow Corning made this promise, it had any contrary intention.
There is consequently no evidence on which a reasonable juror could find that Dow Corning
fraudulently misrepresented a material fact to Gason.
Gason’s claim for silent fraud fails for a different reason. In Michigan, a claim for silent
fraud can lie only when there exists a legal duty of disclosure. Hord, 617 N.W.2d at 550. That
duty can be found “where a plaintiff makes inquiries to a defendant, ‘to which the defendant
makes incomplete replies that are truthful in themselves but omit material information.’” Id.; see
also M&D, Inc. v. W.B. McConkey, 585 N.W.2d 33, 39 (Mich. Ct. App. 1998) (special conflict
panel) (“Our review of Michigan Supreme Court precedent regarding th[e] issue [of silent fraud]
reveals that, in every case, the fraud by nondisclosure was based upon statements by the vendor
that were made in response to a specific inquiry by the purchaser, which statements were in some
way incomplete or misleading.” (quoting M&D, Inc. v. McConkey, 573 N.W.2d 281, 287 (Mich.
Ct. App.), vacated, 573 N.W.2d 281 (Mich. Ct. App. 1997))).

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There is no evidence in this case upon which a reasonable juror could find that Gason
made “a specific inquiry” concerning the status of her green-card application, and Gason has
cited no caselaw to support the proposition that Dow Corning had a duty to disclose that it had
stopped the process. See M&D, Inc., 585 N.W.2d at 39. Moreover, Dow Corning reserved the
right to terminate Gason’s employment at will. It thus had no duty to disclose that it would put
the brakes on Gason’s application in 2014.
C. Promissory-estoppel claim
In Michigan, a claim for promissory estoppel has four elements:
(1)
(2)

(3)
(4)

a promise,
that the promisor should reasonably have expected to
induce action of a definite and substantial character on the
part of the promisee,
which in fact produced reliance or forbearance of that
nature,
in circumstances such that the promise must be enforced if
injustice is to be avoided.

Leila Hosp. & Health Ctr. v. Xonics Med. Sys., Inc., 948 F.2d 271, 275 (6th Cir. 1991) (quoting
McMath v. Ford Motor Co., 259 N.W.2d 140, 142 (Mich. Ct. App. 1977) (per curiam)). “The
doctrine of promissory estoppel is cautiously applied,” Marrero v. McDonnell Douglas Capital
Corp., 505 N.W.2d 275, 278 (Mich. Ct. App. 1993) (per curiam), and its “sine qua non . . . is that
the promise be clear and definite,” State Bank of Standish v. Curry, 500 N.W.2d 104, 108 (Mich.
1993).
Construing Gason’s amended complaint liberally, it alleges that Dow Corning promised
to sponsor Gason’s application for a green card. That Dow Corning would sponsor such an
application was necessarily implied in its offer to localize Gason’s employment in the United
States. To this extent, Dow Corning made a clear and definite promise to her. By offering
Gason a localized position, Dow Corning assumed responsibility to make reasonable efforts to
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sponsor her green-card application so that she could work legally in the United States. This
conclusion is buttressed by the Supreme Court of Michigan’s admonition that, “[t]o determine
the existence and scope of a promise, [the court must] look to the words and actions of the
transaction as well as the nature of the relationship between the parties and the circumstances
surrounding their actions.” Id. at 109. To conclude, as the district court did, that there is no
evidence that Dow Corning made any commitment whatsoever concerning Gason’s immigration
status ignores the nature of the parties’ relationship and the simple truth that Dow Corning’s
offer of a localized position necessarily entailed an effort to obtain legal-permanent-residence
status for Gason—an effort that Dow Corning subsequently commenced.
We can, however, “affirm the judgment of the district court on any ground supported by
the record.” La. Sch. Emps.’ Ret. Sys. v. Ernst & Young, LLP, 622 F.3d 471, 477 (6th Cir. 2010).
The record here shows that Gason agreed to at-will employment when she accepted a localized
position in the United States. She also delayed the green-card application process by not timely
submitting paperwork.

The undisputed evidence further shows that Dow Corning went to

considerable length to carry out its promise to sponsor her application.
Forcing Dow Corning to continue to sponsor her application or to pay damages for
ceasing to do so would strip Dow Corning of its rights under Gason’s at-will employment
contract, ignore Gason’s contributions to the delay, and disregard the fact that Dow Corning did
make concerted efforts to carry out its promise. Because there is no evidence in the record that
would permit a reasonable juror to reach a contrary conclusion, there is no injustice to avoid.
See Leila Hosp. & Health Ctr., 948 F.2d at 275. Accordingly, we affirm the district court’s
ruling on the promissory-estoppel claim, but not on the same grounds as were relied upon by that
court.

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D. Breach-of-contract claim
A breach-of-contract claim requires proof that a contract existed. A valid contract in
Michigan requires, among other things, “mutuality of agreement.” Hess v. Cannon Twp., 696
N.W.2d 742, 748 (Mich. Ct. App. 2005). Mutuality of agreement requires “a meeting of the
minds on all the material facts . . . , and whether such a meeting of the minds occurred is judged
by an objective standard, looking to the express words of the parties and their visible acts.”
Groulx v. Carlson, 440 N.W.2d 644, 648 (Mich. Ct. App. 1989).
As discussed above, the most that Dow Corning could have promised was that it would
sponsor Gason’s green-card application as long as she was a localized employee. Dow Corning
could not have promised to actually obtain a green card for her because Dow Corning is not
empowered to issue green cards. Nor could Dow Corning have promised to maintain Gason’s
employment until she obtained a green card because the undisputed evidence shows that Gason
agreed to the terms of localized employment, which included an at-will provision.
Consequently, if Gason believed that Dow Corning promised to obtain a green card for her, there
is no evidence of mutuality of agreement on that point. To the extent that the parties mutually, if
impliedly, agreed that Dow Corning would make a good-faith effort to sponsor Gason’s greencard application during the duration of Gason’s localized employment, Dow Corning fulfilled
that promise by retaining counsel to assist in the matter and regularly seeking Gason’s
participation when she was dilatory in completing the necessary paperwork. The district court
therefore did not err in granting summary judgment on this claim.
In regard to Gason’s claim that Dow Corning violated a covenant of good faith and fair
dealing in ceasing to sponsor her green-card application, “Michigan law does not recognize the
existence of an implied covenant of good faith and fair dealing in the employment arena.”

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McCormick v. Sears, Roebuck & Co., 712 F. Supp. 1284, 1289 (W.D. Mich. 1989) (citing Mich.
State Emps. Ass’n v. Dep’t of Mental Health, 365 N.W.2d 93, 96 (Mich. 1984)). Gason seeks to
sever her claim for a breach of the implied covenant of good faith and fair dealing from her claim
for breach of her employment contract in order to avoid the rule described above. She suggests
that Dow Corning’s promise to sponsor her green-card application was separate from her
employment contract and constituted a separate agreement as to which Dow Corning’s
performances was “a matter of its own discretion,” as required for a good-faith-and-fair-dealing
claim. See Stephenson v. Allstate Ins. Co., 328 F.3d 822, 826 (6th Cir. 2003).
Gason’s argument, however, is inconsistent with her earlier, repeated assertions that Dow
Corning’s “provision of her green card was part and parcel of the localization process.” In
addition, Gason does not appear to have raised a claim for a breach of the implied covenant of
good faith and fair dealing in her amended complaint and has thus waived such an argument.
See, e.g., Lamson & Sessions Co. v. Peters, 576 F. App’x 538, 543 (6th Cir. 2014). The district
court therefore did not err in granting summary judgment for Dow Corning on Gason’s breachof-contract claim.
III. CONCLUSION
For all of the reasons set forth above, we AFFIRM the judgment of the district court.

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