Schram v. The Dow Chemical Company
OPINION AND ORDER Denying 36 Motion for Summary Judgment. Signed by District Judge David M. Lawson. (SPin)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Case Number 16-14312
Honorable David M. Lawson
DOW CORNING CORPORATION,
OPINION AND ORDER DENYING MOTION FOR SUMMARY JUDGMENT
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
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 —
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 rock star.”
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
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
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. Nobels, responding
apparently to an earlier exchange with Govitz, wrote as follows:
Joy, I would recommend to wait until early Jan to let [Schram] know she is on [the]
redeployment list and to start the 60 days clock. This will be more fair as the coming
weeks will be difficult to engage others for redeployment (with end of year break).
Now you may (informally) encourage her to look at options and apply for open
positions. It’s a little bit ambiguous but I try to find the best way for DC and the
Plf.’s Resp., Ex. 17, Email string dated Dec. 15-17, 2014 (Pg ID 808). Velasquez then replied:
I disagree with this timing of waiting. We need to start this happening now and that
means we need to communicate with her now so that we can make our other stacked
decisions in our region. We are already asking her to look at other jobs, so I think we
should be clear now.
Ibid. Nobels then replied, “OK Chris — I understand your point but I want the clock to start 1 Jan
and not now to be fair to her.” Both Govitz and Velasquez, as well as HR staffer Dabrowski and
Kelly, were copied on that entire email exchange.
On December 19, 2014, Govitz sent an email to Dabrowski with a proposed “redeployment
letter” for Dabrowski’s review. Dabrowski commented in response that she thought the first
paragraph should read “Your skills are not currently aligning with the needs that we have for the
Regional Market Leader position.” Govitz followed up with an email on December 30, 2014,
reporting to Dabrowski an “update” stating that she had spoken with Schram, “informed her that due
to her skills that she is not currently aligned with the need of the role and she will be put on
redeployment at the beginning of the year.” Govitz reported that Schram “told me she was confused
because last Dec (‘13) we offered her the role because she knew the job and market the best. Now,
just 1 year later, we are telling her that her skills do not align.”
Schram testified that Govitz sent her an email on December 19, 2014 asking if Schram had
time to talk that afternoon. When they met that day, Govitz told Schram that her “job had been
eliminated,” but that Govitz would “do [her] a favor and allow [her] to be redeployed.” Govitz did
not offer any details on when Schram would be “redeployed” or why her job was eliminated.
Schram was puzzled because she had just attended a marketing meeting the same morning where
“IAM was at the top of the list” and seemed to be “the market right now that everybody wants to be
a part of,” largely due to Schram’s efforts to bring order to the segment since she had returned.
Schram told Govitz she could not understand why her job was being eliminated, particularly after
Govitz had given her two cash awards in 2014 for exceeding expectations, and she expressed to
Govitz that “to think that this channel could be resolved in just a matter of months that had been
years and decades in turmoil was ridiculous.”
Govitz at some point told Schram that she would be put on the “redeployment list” and
would have 60 days to find another job within Dow Corning. However, Schram subsequently met
with “over 70 Dow Corning managers” in January 2015, and she was told by them that she was “not
in the redeployment pool” and therefore was “not eligible for a job in their organization[s].” One
of Dow Corning’s “talent mangers” who met with other human resources staff weekly to review the
redeployment list and try to locate openings for those on the list also told Schram that she was not
in the redeployment pool. Govitz also started refusing to approve Schram’s expense reports after
she was supposedly “redeployed” in January 2015, which caused Schram to have her work credit
card declined, so that she had to pay out of pocket and get reimbursed for work expenses.
Schram ultimately was unable to find another permanent position within Dow Corning since
she was told by all the units she applied to that she was not in the redeployment pool, and eventually
she accepted a temporary position in another business unit, since she was unable to secure any
permanent job. It appears that temporary position was eliminated by Dow Corning in 2016, after
Dow Corning was acquired by Dow Chemical, at which time Schram was “offered a severance” and,
according to her, “forced to retire.” Schram was told by her interim supervisor in that position that
“it was obvious [she] was a bad employee or [she] would not have been redeployed.” Schram
testified that her mid-year performance review for 2014 indicated that she was meeting all of
Govitz’s expectations for 2014, until she went out on medical leave, which was inconsistent with
Govitz’s claims that she did not meet any expectations after she returned. However, in January
2015 Govitz prepared a “final” performance review for Schram in which she wrote that Schram was
not meeting any expectations of her position. Schram discussed that evaluation with Govitz’s
superior, Diane Kelly, who told Schram that she believed the evaluation was unfair; Kelly also said
that she would talk to Govitz about it. Schram testified that in her 29 years working for Dow she
had never received a “not met” comment for any expectation on a performance review.
F. Plaintiff’s Replacement (Gifford Shearer)
Gifford Shearer testified that he worked for Multibase in various positions following his
graduation from university in 2000. Shearer began as an application engineer, later became a
technical manager supervising other engineers, and eventually moved into a “business development”
role, in which he was responsible for “selling . . . silicon thermoplastics into consumer electronics
applications.” In 2012, after Multibase was acquired by Dow Corning, Shearer moved into a
position in marketing, and he has continued in that role to the present. Shearer testified that Diane
Kelly was his “manager” at Dow Corning until she retired in November 2014, and then he “was
reporting to Chris [Velasquez].”
In January 2015, Velasquez contacted Shearer and “asked [him] to take on the new
marketing responsibility for what was called industrial assembly and maintenance.” Shearer
accepted Velasquez’s offer, and he “began reporting to Joy Govitz” in March 2015, then
“transitioned full-time to that role on April 1.” Shearer stated that he had not worked in the
“industrial marketing” segment before he took over the IAM role in 2015. Shearer testified that after
he transferred to the IAM role, his job title was “regional marketer for industrial assembly and
maintenance,” and, when asked “who held that position prior to you,” Shearer answered, “Sharon
Schram.” Shearer stated that he never met with Schram and never was told anything about why she
was leaving the IAM position. Shearer’s current salary in the IAM job is $144,000 per year.
G. HR Complaint and Investigation (2015)
Schram submitted a complaint to the Dow Corning Human Resources department in January
2015, based on her “concerns related to her 2014 year end PIP review.” Dow Corning HR Manager
Jen Stange investigated the complaint and prepared a report, which noted that Schram stated she was
surprised by the negative evaluation she received in January, since she had received “raving
reviews” from other managers at Dow Corning about her performance.
Stange also stated that she spoke with Philippe Nobels “to document the process used to
identify Sharon Schram to go on deployment.” Stange reported that Nobels told her that another
regional market manager, Paul Wisniewski, was going to be left “without a role” as a result of a
“market wind down,” and that, because Wisniewski was a “good performer” and Schram was “not
a good fit with marketing,” “a decision was made based on performance that Paul would ‘bump’
Sharon out of her role, and she would be given the opportunity for redeployment.”
Stange concluded that there was “no evidence of discrimination” in the redeployment
decision, but noted that “[c]oaching was provided to the Talent Manager (non-U.S. based) that
consultation with U.S. Site HR team was needed on U.S. employment matters on future matters
[sic], it is not practice to ‘bump’ talent out of a role outside of a formal RIF’s [sic] in the U.S.” The
report does not explain why it refers to Schram being replaced by Wisniewski rather than Shearer;
Wisniewski was not mentioned in any of the discussions between Nobels and other Dow managers
about replacing Schram.
H. Procedural History
The plaintiff filed her complaint in this case on December 12, 2016, follow by two
amendments. The second amended complaint, which was filed by stipulation of the parties on June
30, 2017, pleads claims for: retaliation contrary to the federal Family & Medical Leave Act (FMLA)
(Count I); disability discrimination under the Michigan Persons With Disabilities Civil Rights Act
(PWDRCA) (Count II); retaliation under the Michigan Worker’s Disability Compensation Act
(WDCA), Mich. Comp. Laws § 418.301(13); and gender discrimination under the Michigan
Elliott-Larsen Civil Rights Act (ELCRA) (Count IV).
Defendant Dow Corning filed a motion for summary judgment, to which the plaintiff
responded. The Court heard oral argument on January 4, 2018.
Summary judgment is appropriate “if 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).
A trial is required when “there are any genuine factual issues that properly can be resolved only by
a finder of fact because they may reasonably be resolved in favor of either party.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). Notably, however, “[t]he court must view the
evidence and draw all reasonable inferences in favor of the non-moving party, and determine
‘whether the evidence presents a sufficient disagreement to require submission to a jury or whether
it is so one-sided that one party must prevail as a matter of law.’” Alexander v. CareSource, 576
F.3d 551, 557-58 (6th Cir. 2009) (quoting Anderson, 477 U.S. at 251-52).
Dow Corning challenges each of the four counts of the second amended complaint.
A. FMLA Retaliation
Count I of the second amended complaint is titled “Retaliation in Violation of the Family and
Medical Leave Act.” In essence, that count alleges that the defendant took an “adverse action”
against Schram for taking FMLA-qualifying leave to treat and recover from her detached retina.
“‘The FMLA affords employees protection in the event they suffer retaliation or
discrimination for exercising their rights under the FMLA. Specifically, an employer is prohibited
from discriminating against employees who have used FMLA leave, nor can they use the taking of
FMLA leave as a negative factor in employment actions.’” Marshall v. The Rawlings Co. LLC, 854
F.3d 368, 376 (6th Cir. 2017) (quoting Arban v. West Pub. Corp., 345 F.3d 390, 403 (6th Cir. 2003)
(quotation marks and alterations omitted)).
To establish a case of retaliation under the FMLA, a plaintiff must show that: (1) the plaintiff
engaged in activity protected by the FMLA; (2) the employer knew that she was exercising a right
under the Act; (3) the employer took adverse action against her after learning that the plaintiff
exercised a right under the FMLA; and (4) there is a causal connection between the employee’s
protected activity and the employer’s adverse employment action. Donald v. Sybra, Inc., 667 F.3d
757, 761 (6th Cir. 2012); see also Skrjanc v. Great Lakes Power Serv. Co., 272 F.3d 309, 314 (6th
The defendant argued in its motion that the plaintiff’s retaliation claim fails because there
is no evidence on elements one or three. In response, the plaintiff argues that she requested and took
FMLA-qualifying leave, and that the defendant actually interfered with her FMLA rights. That
response provoked a reply from Dow Corning that the plaintiff never pleaded an FMLA interference
claim, and therefore that cause of action is not on the table. It also generated a new (unbriefed)
defense argument raised for the first time at the hearing that the plaintiff abandoned her FMLA
retaliation claim by not addressing it in the response brief.
1. No FMLA Interference Claim Was Pleaded or Proved
The FMLA prohibits employers from interfering with an employee’s exercise of rights
conferred by that statute, 29 U.S.C. § 2615(a)(1), and from retaliating against an employee who
exercises or attempts to exercise those rights, id. § 2615(a)(2). Seeger v. Cincinnati Bell Tel. Co.,
LLC, 681 F.3d 274, 282 (6th Cir. 2012) (recognizing “two discrete theories of recovery under the
FMLA: (1) the so-called ‘interference’ or ‘entitlement’ theory . . . , and (2) the ‘retaliation’ or
‘discrimination’ theory . . . .”). A plaintiff can proceed under both theories, but the pleading and
“proof needed for each claim differs.” Tennial v. United Parcel Service, Inc., 840 F.3d 292, 307-08
(6th Cir. 2016).
The Sixth Circuit has allowed plaintiffs to proceed under both theories when the complaint
alleges generally that a defendant-employer’s actions violated the FMLA. See Wysong v. Dow
Chem. Co., 503 F.3d 441, 446 (6th Cir. 2006). But the plaintiff has an obligation to plead her claim
with enough specificity to put the defendant on notice of the theory of liability it must defend. Fritz
v. Charter Twp. of Comstock, 592 F.3d 718, 722 (6th Cir. 2010) (requiring that “[t]he factual
allegations in the complaint need to be sufficient to give notice to the defendant as to what claims
are alleged, and the plaintiff must plead ‘sufficient factual matter’ to render the legal claim plausible,
i.e., more than merely possible”) (quoting Ashcroft v. Iqbal, 556 U.S. 662 (2009)); see also Tucker
v. Middleburg-Legacy Place, 539 F.3d 545, 551 (6th Cir. 2008) (holding that FMLA claim was not
pleaded with sufficient specificity).
The plaintiff’s second amended complaint gives no hint that she intended to pursue an
FMLA interference claim against the defendant. The title of Count I mentions only “retaliation.”
At oral argument, plaintiff’s counsel directed the Court to paragraph 42, but that states only that the
“FMLA prohibits an employer from discriminating and retaliating against an employee” for
exercising FMLA rights. And it references only 29 U.S.C. § 2615(a)(2) and 29 C.F.R. § 825.220(c),
both of which support retaliation claims, not interference claims.
More importantly, the record does not support an interference claim. “To establish a claim
for interference under the FMLA, a plaintiff must demonstrate that (1) he is an eligible employee,
(2) the defendant is an employer as defined under the FMLA, (3) the employee was entitled to leave
under the FMLA, (4) the employee gave the employer notice of his intention to take leave, and (5)
the employer denied the employee FMLA benefits to which he was entitled.” Tennial, 840 F.3d at
308. “A benefit is denied if an ‘employer interferes with the FMLA-created right to medical leave
or to reinstatement following the leave.’” Ibid. (quoting Arban v. West Publishing Corp., 345 F.3d
390, 401 (6th Cir. 2003)).
The plaintiff has not offered any evidence that she was denied any of the leave that she
sought to take, and she does not dispute the defendant’s position that its leave policies would have
required her to exhaust any paid sick leave and available short-term disability benefits before taking
any unpaid FMLA leave. So she has failed to show that she suffered any deprivation of rights under
the FMLA that resulted in any “interference” with her leave. The FMLA expressly permits an
employer to substitute paid sick leave for unpaid FMLA leave, if the substitution is made according
to a leave policy that requires that expedient. Harrison, v. Proctor & Gamble Distributing, LLC,
No. 15-514, 2017 WL 5523150, at *9 (S.D. Ohio Nov. 17, 2017) (citing 29 C.F.R. § 825.207); see
29 C.F.R. § 852.207(a) (“Generally, FMLA leave is unpaid leave. However, under the circumstances
described in this section, FMLA permits an eligible employee to choose to substitute accrued paid
leave for FMLA leave. If an employee does not choose to substitute accrued paid leave, the
employer may require the employee to substitute accrued paid leave for unpaid FMLA leave.”).
The plaintiff notified her employer that she would be absent due to her surgery, and when
her absence would end, and she took all of the leave that she desired and her doctor recommended.
She therefore has not shown that she was denied any medical leave that she sought, regardless of
how that leave was denominated. Tennial, 840 F.3d at 308 (“Tennial was never denied leave. He
was in fact granted it twice, once in 2011 when he was the Twilight Sort’s Hub Manager and again
in 2012 when he served as a supervisor of the Oakhaven Hub. Nor was he denied reinstatement to
those positions when he returned from leave.”); Hargett v. Jefferson Cty. Bd. of Education, No. 175368, 2017 WL 5664922, at *7 (6th Cir. Oct. 27, 2017) (“Hargett admitted that she had never been
denied any requested FMLA leave, either before or after her request for an extension, that no one
had ever suggested to her that she had taken FMLA leave inappropriately, and that no one had ever
commented negatively about her FMLA leave requests.”). The plaintiff testified that she previously
took FMLA leave for the birth of a child and knew how to request it, but she has not put forth any
evidence that she ever made any request for FMLA leave for her eye surgery, and she asserted at
her deposition that she could not recall making any such request.
The plaintiff insists that she may pursue an interference claim because Dow Corning never
offered her FMLA leave after it became aware that she had requested leave that could qualify under
the FMLA. It is true that the regulations require an employer, who learns that an employee’s leave
may be FMLA-qualifying, “must notify the employee of the employee’s eligibility to take FMLA
leave within five business days, absent extenuating circumstances.” 29 C.F.R. § 825.300(b)(1). And
a failure to give such notice may be actionable. However, the Sixth Circuit, consistently with other
circuits and the Supreme Court, has held that such failure-to-notify claims are actionable only where
the lack of notice causes the employee some harm, such as loss of leave, benefits, salary, or position.
Reeder v. Wayne County, 694 F. App’x 1001, 1004 n.1 (6th Cir. 2017) (“[A]n employer’s inaction
in failing to give an employee required notice of his rights under the FMLA may support recovery
on an FMLA interference claim if such failure caused the employee harm.” (emphasis added))
(citing Wallace v. FedEx Corp., 764 F.3d 571, 588-89 (6th Cir. 2014)); see also Bellone v.
Southwick-Tolland Regional School District, 748 F.3d 418, 423 (1st Cir. 2014) (“Late or inadequate
notices . . . are not actionable unless they harm the employee.”) (citing Ragsdale v. Wolverine World
Wide, Inc., 535 U.S. 81, 90–91 (2002)). That principle is consistent with the statutory text stating
that the employer “may be liable for compensation and benefits lost by reason of the violation, for
other actual monetary losses sustained as a direct result of the violation, and for appropriate
equitable or other relief, including employment, reinstatement, promotion, or any other relief
tailored to the harm suffered.” 29 C.F.R. § 825.300(e) (emphasis added). The plaintiff has not
established that she suffered any harm as a result of the alleged notice failure.
2. FMLA Retaliation Claim
Nothing in the plaintiff’s brief suggests that she abandoned her retaliation claim. To be sure,
she did not discuss all the elements of a prima facie case for interference, but then neither did the
defendant. Instead, the plaintiff’s argument met the defendant’s challenge on whether she engaged
in protected activity, that is, that she took FMLA-qualifying leave, which triggered her poor
treatment at the hands of her supervisor, Joy Govitz, and others.
The record contains abundant evidence from which a jury could find all the elements of a
prima facie case for retaliation: protected activity, employer knowledge, adverse action, and causal
connection. Marshall, 854 F.3d at 381. “To prove that [the defendant] engaged in FMLA
retaliation, [the plaintiff] must show that taking leave was a causal factor in [the defendant’s]
decisions to demote [or] fire her,” which may be shown “through either direct or indirect evidence.”
Id. at 376-77. The defendant does not dispute that it is a covered employer and the plaintiff was an
eligible employee under the FMLA. It is undisputed that the plaintiff took at least 10 days of sick
leave between September 17 and October 6, 2014. She notified her supervisor, Joy Govitz, that the
leave was necessary for her to undergo and recover from surgery to repair a detached retina, which
if left untreated threatened a loss of vision in one eye.
The eye injury plainly was “a serious health condition” that made the plaintiff “unable to
perform one or more of the essential functions of his or her job.” 29 U.S.C. § 825.200(a)(4).
“Serious health condition means an illness, injury, impairment or physical or mental condition that
involves inpatient care as defined in § 825.114 or continuing treatment by a health care provider as
defined in § 825.115.” 29 C.F.R. § 825.102. “A serious health condition involving continuing
treatment by a health care provider includes . . . [a] period of incapacity of more than three
consecutive, full calendar days, and any subsequent treatment or period of incapacity relating to the
same condition, that also involves [t]reatment two or more times, within 30 days of the first day of
incapacity . . . by a health care provider, by a nurse under direct supervision of a health care
provider, or by a provider of health care services (e.g., physical therapist) under orders of, or on
referral by, a health care provider.” 29 C.F.R. § 825.115(a)(1). The plaintiff testified that she had
no vision in her left eye for weeks after the surgery, which made her unable to drive or effectively
to use her laptop computer, even when working from home. She also was on a travel restriction
prohibiting her from flying even after she returned to work. She was seen “daily” and then “every
other day” during the nearly three weeks she was out of work. Those circumstances plainly rendered
the plaintiff unable to perform at least the “essential functions” of her job of communicating with
her co-workers and customers using her computer, and traveling by air for business purposes, as she
routinely was required to do.
The defendant’s contention that the eye injury was not “serious” or did not impair the
plaintiff’s ability to perform the essential functions of her job is groundless and unsupported by the
record. The plaintiff therefore adequately has supported her claim that she engaged in protected
activity under the FMLA, because protected activity under the act includes both taking FMLA-
qualifying medical leave, Waag v. Sotera Defense Solutions, Inc., 857 F.3d 179, 192 (4th Cir. 2017),
and submitting a request for such leave, Echevarria v. AstraZeneca Pharm. L.P., 856 F.3d 119, 134
(1st Cir. 2017).
The plaintiff also has put forth sufficient evidence to suggest that she suffered “adverse
actions” sufficient to sustain a retaliation claim, when, following her return from medical leave,
Govitz (1) stopped meeting with the plaintiff as previously scheduled to discuss her marketing work,
repeatedly refused to meet with her for any business purpose, and excluded her from work-related
events to which co-workers were invited; (2) imposed an undue level of minute scrutiny on the
plaintiff’s work activities, which she never had been subjected to before; (3) within weeks after the
plaintiff’s return, began agitating for the plaintiff’s “redeployment” and replacement by another
employee favored by Govitz’s new superior; and (4) in order to justify the “redeployment,”
concocted a severely negative final performance review of the plaintiff, which was unsupported by
any substantiated decline in performance, and sharply contrasted with the “kudos” and “rave
reviews” the plaintiff had received from Govitz, other Dow Corning mangers, and distribution
partners, before she went on medical leave.
“To be adverse, a retaliatory action must be enough to dissuade a reasonable person from
engaging in the protected activity.” A.C. ex rel. J.C. v. Shelby County Board of Education, 711 F.3d
687, 698 (6th Cir. 2013). The acts complained of here were no mere petty slights or annoyances;
imposing unfounded negative evaluations and reassigning a 29-year career employee to a temporary
position from which she was discharged one year later, when the position predictably was
eliminated, certainly comprise consequences that would give any reasonable employee pause in
exercising her statutory right to medical leave.
The defendant contends that the plaintiff never suffered any “adverse action” because she
was not (immediately) terminated and eventually found another (temporary) position within Dow
Corning, “without ever missing a paycheck.” But the “materiality” standard on which the defendant
relies for that argument governs the analysis of adversity for discrimination claims, not for claims
of retaliation. The Sixth Circuit has observed that “the definition of adverse action is essentially the
same” for retaliation claims under statutes such as the ADA and FMLA as that applied to retaliation
claims under the First Amendment. Wenk v. O’Reilly, 783 F.3d 585, 595 (6th Cir. 2015) (citing
Wurzelbacher v. Jones-Kelley, 675 F.3d 580, 583 (6th Cir. 2012) (“In the First Amendment
context, . . . we have held that any action that would deter a person of ordinary firmness from
exercising protected conduct will [constitute a sufficient adverse action].”)). The plaintiff’s proofs
here easily surpass that more liberal “ordinary firmness” threshold.
The plaintiff also has put forth sufficient evidence to show a causal connection between her
medical leave and the ensuing “redeployment” and associated negative performance reviews
imposed by Govitz after she returned from leave. It is undisputed that Schram returned to work on
October 6, 2014, and the record suggests that Govitz was agitating for her “redeployment” within
less than six weeks, as shown by the email exchange between Govitz, her superior Christian
Velasquez, and Dow Corning marketing director Eve Luo, in which Luo asked if Philippe Nobels
thought that Schram would be a good candidate for a customer service position. The communique
indicated that “[a]s we discussed, we would like to free up Sharon and have someone to take the NA
IAM marketing role.” Govitz claims that she was “not involved” in the redeployment decision, but
in the same email exchange, 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.”
(emphasis added). Also, in the later email exchange in mid-December, Dow HR staffer Melissa
Dabrowski replied and specifically addressed “Joy” (Govitz), contesting what likely was an earlier
request by Govitz to begin Schram’s redeployment “clock” earlier than Dabrowski recommended.
Those exchanges would permit a jury to infer reasonably that Govitz was more “involved” in the
decision than she claims, and that she either drove the process, or at least instigated and had
substantial input into the plans for it.
The Sixth Circuit “has determined that a two to three month period between protected
activity and adverse employment action was sufficient to establish a causal connection.” Frazier
v. Richland Public Health, 685 F. App’x 443, 455-56 (6th Cir. 2017) (citing Clark v. Walgreen Co.,
424 F. App’x 467, 473 (6th Cir. 2011) (“[T]he court correctly credited the temporal proximity [two
months] of [the plaintiff’s] leave and his firing as sufficient evidence of a causal connection between
the two. Our precedents stand for the principle that timing matters.”); Bryson v. Regis Corp., 498
F.3d 561, 571 (6th Cir. 2007) (three months between the plaintiff’s request for FMLA leave and her
termination on the day she was scheduled to return to work sufficed to establish causal connection
at the prima facie stage)). Here, the record amply suggests that Govitz’s campaign to oust Schram
was well underway within six weeks after Schram returned from her medical leave, and that the
decision to replace her was made between mid-November and mid-December, no more than 2-1/2
months after Schram was back to work after her recovery.
Govitz’s superior, Diane Kelly, attested in a declaration that it was she who “recommended”
that Schram be placed on the redeployment list, and that Govitz “was not involved” in the decision.
But those assertions are called into question by Kelly’s deposition testimony that she did not make
the “final decision” regarding Schram’s replacement, because she was in the process of retiring, and
that the “final decision,” according to Kelly, was made by Dow Corning manager Eve Luo.
Moreover, the only purported factual basis for the redeployment was Schram’s “poor
performance” following her return from medical leave, which was document solely by one postleave negative review from Govitz. The Sixth Circuit has held that the so-called “cats-paw” theory
of liability applies to FMLA retaliation claims; under that theory, liability may be established where
“a biased subordinate, who lacks decisionmaking power, uses the formal decisionmaker as a dupe
in a deliberate scheme to trigger a discriminatory employment action.” Marshall, 345 F.3d at 377
(quotations omitted). Of course, “[i]f the decisionmaker conducts an investigation that ‘results in
an adverse action for reasons unrelated to the supervisor’s original biased action . . . then the
employer will not be liable.’” Id. at 380 (quoting Staub v. Proctor Hospital, 562 U.S. 411, 421
(2011)). However, “there is no ‘hard-and-fast rule’ that a decisionmaker’s independent investigation
defeats a cat’s paw claim,” and, “an independent investigation defeats a cat’s paw claim only when
the investigation ‘determin[es] that the adverse action was, apart from the supervisor’s
recommendation, entirely justified.’” Ibid. (quoting Staub, 562 U.S. at 421). The defendant has not
advanced any evidence from the record to suggest that any of the purported decision makers — Luo,
Nobels, Kelly, or Velasquez — conducted any independent investigation to verify the supposed
abrupt decline in Schram’s performance.
There is evidence in the record from which a jury reasonably could conclude that Schram’s
supposed performance decline was fabricated by Govitz herself, and never questioned by her
superiors. The plaintiff testified that Kelly told her the negative evaluation given in January 2015
was “unfair”; she also testified that she had received positive feedback from Dow Corning managers
and channel project partners up to the day she was told she was being redeployed, including a
resoundingly positive showing at a marketing meeting that same day where the IAM segment was
featured “at the top of the list” in terms of success. It had been “at the bottom of the list” only
months before when Schram took over. Nothing in Kelly’s testimony suggests that she undertook
any investigation of her own to substantiate the supposed decline in performance, or that Kelly relied
on anything beyond Govitz’s negative views when she “recommended” the redeployment. Also,
Dow’s own internal HR investigator noted, after discussing the redeployment with Nobels, that
Nobels represented that Schram was “bumped” from her IAM position so that it could be taken by
another employee under threat of redeployment. That is further evidence that motives other than
any substantiated drop in performance animated the decision-maker on the redeployment.
Because there is no evidence that any independent investigation corroborated the abrupt
reversal of Govitz’s previously positive views on the plaintiff’s performance, a jury reasonably
could conclude that Govitz merely duped her superiors into replacing Schram on the basis of
purported low performance unsubstantiated by anything beyond her own negative review,
manufactured to oust Schram in retaliation for her absence on medical leave. Therefore, the
defendant may be held accountable under the “cats paw” theory for a decision that could be found
to have been driven, or at least instigated, entirely by Govitz’s retaliatory animus, regardless of the
fact that other managers in the company nominally “signed off” on the decision to redeploy the
Finally, other factual circumstances adequately suggest that the negative performance
reviews delivered in December 2014 and January 2015 by Govitz were merely pretextual and
concocted to cover her unlawful retaliatory animus toward Schram due to her exercise of her rights
under the FMLA. The discreet performance lapses relied upon by the defendant — comments to
Schram by Govitz and another Dow manager about revisions to one white paper and one segment
of a presentation slide show — readily could be found by a jury to be inconsequential next to the
plaintiff’s demonstrated performance in “turning around” the IAM segment in late 2014, in just a
few short months, which was supported by Govitz’s positive mid-year review of Schram, and by
comments made to Schram by other managers and channel project partners. Kelly’s comment to
Schram that the 2015 review was unfounded and “unfair” also calls into question the credibility of
Govitz’s abruptly soured view. And Govitz’s condescending comments to Schram in a meeting with
co-workers, mocking her impaired vision just four days after she returned to work, also suggest that
Govitz was preoccupied with Schram’s impairment and her absence from work, not with the actual
performance of her duties. At a minimum, the record sufficiently impeaches the credibility of the
negative performance evaluation on which the defendant relies to establish a non-discriminatory
basis for the termination, and the Sixth Circuit has found on similar facts that the credibility of the
basis for the dismissal was for the jury to weigh. Marshall v. The Rawlings Co. LLC, 854 F.3d 368,
382 (6th Cir. 2017). The plaintiff has advanced sufficient evidence to put at issue whether her
redeployment for “poor performance” was supported by any credible basis in fact, and whether
concern with her performance was the actual motive that drove Govitz in agitating for Schram’s
The record evidence adequately establishes factual disputes that require a trial on the FMLA
B. WDCA Retaliation
The Michigan Worker’s Disability Compensation Act prohibits an employer from
“discharg[ing] an employee or in any manner discriminat[ing] against an employee because the
employee filed a complaint or instituted or caused to be instituted a proceeding under this act or
because of the exercise by the employee on behalf of himself or herself or others of a right afforded
by this act.” Mich. Comp. Laws § 418.301(13). “To establish a prima facie case of retaliation under
the WDCA, an employee who has suffered a work-related injury must present evidence: (1) that the
employee asserted a right to obtain necessary medical services or actually exercised that right, (2)
that the employer knew that the employee engaged in this protected conduct, (3) that the employer
took an employment action adverse to the employee, and (4) that the adverse employment action and
the employee’s assertion or exercise of a right afforded under MCL 418.315(1) were causally
connected.” Cuddington v. United Health Services, Inc., 298 Mich. App. 264, 275, 826 N.W.2d 519,
The defendant contends that the WDCA retaliation claim must be dismissed because the
plaintiff has failed to show that she engaged in any “protected activity” pertinent to the WDCA, or
that her employer was aware of any such conduct, or that the defendant ever took any adverse action
against the plaintiff in response to any such conduct. The Court disagrees.
The plaintiff has put forth sufficient evidence to allow a jury reasonably to conclude that
Govitz unlawfully instigated her redeployment because she resented Schram’s exercise of her right
to seek necessary medical treatment for her work-related eye injury. It is undisputed that the
plaintiff exercised her right to seek medical treatment when she took at least 10 days of medical
leave to receive surgery for and to recover from a detached retina. The defendant contends that there
is “no evidence” that the injury was “work related,” but that position necessarily ignores the
plaintiff’s own testimony that the eye injury was caused by a piece of luggage that struck her directly
over her eye while she was traveling by air on a business trip. It also is undisputed that Schram told
Govitz she would be on medical leave to receive treatment for her eye injury. Govitz’s knowledge
that the injury was work-related reasonably could be inferred by the jury based on the plaintiff’s
testimony that Govitz said to the plaintiff, “You’re not going to pin this on me,” which easily could
be understood to indicate Govitz’s concern about scrutiny of the circumstances of the injury that
would occur at a company safety meeting.
For the same reasons discussed above, the plaintiff has submitted sufficient evidence to
establish a causal link between the plaintiff’s absence for needed medical treatment and her
redeployment soon after she returned from leave, and to rebut the defendant’s claim that the
redeployment was non-discriminatory and justified by purported poor performance. The defendant’s
congruent arguments raised in opposition to the FMLA retaliation claim fail as applied to this claim,
for the same reasons discussed above.
C. PWDCRA Claim
The plaintiff’s claim for disability discrimination is brought under the Michigan Persons
With Disabilities Civil Rights Act, Mich. Comp. Laws § 37.1101, et seq. That statute “substantially
mirrors” the Americans with Disabilities Act (ADA). Donald v. Sybra, Inc., 667 F.3d 757, 764 (6th
Cir. 2012). And claims brought under it “essentially track those under the ADA.” Demyanovich
v. Cadon Plating & Coatings, LLC, 747 F.3d 419, 433 (6th Cir. 2014) (quotations and alterations
To prove a violation of the PWDCRA, a plaintiff must show “(1) that he is disabled as
defined in the act, (2) that the disability is unrelated to his ability to perform his job duties, and (3)
that he has been discriminated against in one of the ways delineated in the statute.” Peden v. City
of Detroit, 470 Mich. 195, 204; 680 N.W.2d 857, 863 (2004) (quotation marks, citation, and brackets
omitted). As with the ADA, the definition of “disability” includes being “regarded as” disabled.
Mich. Comp. Laws § 37.1103(d)(iii); see also 42 U.S.C. § 12102(1).
Schram alleges that Joy Govitz perceived that she had a disability and took adverse action
against her as a result. Dow Corning argues that the disability discrimination claim must be
dismissed because the plaintiff has failed to offer any evidence that she ever was “disabled,” or
perceived by her employer to be disabled. Schram’s claim is circumstantial. The Court assesses the
viability of such claims using the McDonnell Douglas burden-shifting analysis. Demyanovich, 747
F.3d at 433. Under the McDonnel Douglas structure, “the employee has the initial burden of
establishing [her] prima facie case; if [s]he does so, the burden shifts to the employer to articulate
a legitimate, non-discriminatory reason for its actions; finally, the employee has the burden of
rebutting the employer’s proffered reasons by showing them to be pretextual.” Id. at 427.
Schram has put forth sufficient evidence to sustain her claim that Govitz discriminated
against her because of her actual or perceived visual impairment resulting from the eye injury and
surgery. “To establish a prima facie case of disability discrimination under [the ADA or the
PWDCRA], ‘a plaintiff must show that 1) he or she is disabled; 2) otherwise qualified for the
position, with or without reasonable accommodation; 3) suffered an adverse employment decision;
4) the employer knew or had reason to know of the plaintiff’s disability; and 5) the position
remained open while the employer sought other applicants or the disabled individual was replaced.’”
Gamble v. JP Morgan Chase & Co., 689 F. App’x 397, 402 (6th Cir. 2017) (quoting Whitfield v.
Tennessee, 639 F.3d 253, 258-59 (6th Cir. 2011)).
First, the plaintiff has shown that she either had a “disability” or was perceived by Govitz
to have an impairment under the pertinent statutory criteria. The parties have not suggested that
those standards are differently construed or applied under the ADA and PWDCRA. Under the
ADA: “The term ‘disability’ means, with respect to an individual (A) a physical or mental
impairment that substantially limits one or more major life activities of such individual; (B) a record
of such an impairment; or (C) being regarded as having such an impairment (as described in
paragraph (3)).” 42 U.S.C. § 12102(1). “For purposes of paragraph (1), major life activities include,
but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping,
walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking,
communicating, and working. 42 U.S.C. § 12102(2)(A) (emphasis added). “For purposes of
paragraph (1)(C): (A) An individual meets the requirement of being regarded as having such ‘an
impairment’ if the individual establishes that he or she has been subjected to an action prohibited
under this chapter because of an actual or perceived physical or mental impairment whether or not
the impairment limits or is perceived to limit a major life activity.” 42 U.S.C. § 12102(3)(A).
Subsection (1)(C), concerning “perceived” impairments, does “not apply to impairments that are
transitory and minor,” which are defined as impairments “with an actual or expected duration of 6
months or less.” 42 U.S.C. § 12102(3)(B).
The plaintiff’s testimony that she had no vision in her left eye for weeks following her
surgery, and that it took more than six months for her vision to return to near normal, adequately
establish that she suffered from a condition that substantially limited the major life activities of
“seeing,” “communicating,” and “working,” as well as “performing manual tasks,” such as driving.
The plaintiff also has offered sufficient proof that she was “perceived” by Govitz to have an
impairment, because it is undisputed that Govitz knew the plaintiff would be absent from work for
eye surgery to correct a detached retina, and Schram’s request for a large computer monitor) which
Govitz resisted), coupled with Govitz’s comments mocking the plaintiff’s limited vision the week
after she returned to work, demonstrate that Govitz was aware that the limitation persisted after the
plaintiff returned from leave. The plaintiff testified that it took more than six months for her vision
to return to near normal. Her impairment persists even today, because she still cannot drive at night
due to degraded visual acuity. She still is restricted from flying and from engaging in physical
activities that pose a risk of further injury to her eye. The record therefore sufficiently suggests that
the impairment was not “transitory.”
Second, the plaintiff’s qualifications for the IAM regional marketing position amply are
established by her decade of marketing experience with Dow Corning before reprising the role,
including previously having worked in the same position, demonstrably with great success. Govitz’s
aggressive efforts to recruit the plaintiff back into the job, after Kelly recommended Schram as a
candidate for it, also support the conclusion that she was well qualified. And that conclusion is
bolstered by the “rave reviews” and “kudos” Schram received from Govitz and other Dow Corning
managers, as well as the channel project partners that she served, right up to the day she was notified
by Govitz that she was being “redeployed” due to a purported lack of aptitude for the job.
Third, the plaintiff has put forth sufficient evidence that she suffered an “adverse action,”
as that term is construed under the ADA, when she was transferred from a permanent position in the
IAM regional marketing role to a temporary job, from which she predictably was terminated one
year later. The Supreme Court has held that where an employee was denied a permanent, tenured
position and given notice that he was reassigned to a limited term position that would end in a year,
the action was sufficiently adverse to support a discrimination claim. Shultz v. Congregation
Shearith Israel of City of New York, 867 F.3d 298, 305 (2d Cir. 2017) (“The Supreme Court’s
conclusion that a discrimination claim accrues upon notice of termination, rather than upon the
implementation of that decision, necessarily implies that the notification of termination qualifies as
an adverse employment action.” (citing Delaware State College v. Ricks, 449 U.S. 250 (1980)); see
also Green v. Brennan, --- U.S. ---, 136 S. Ct. 1769, 1782 (2016) (“[A]n ordinary
wrongful-discharge claim accrues — and the limitations period begins to run — when the employer
notifies the employee he is fired, not on the last day of his employment.”). Moreover, the
“redeployment” of a 29-year career employee from a permanent position to a temporary job that was
scheduled to end within a year certainly qualifies as “a tangible change in working conditions that
produces a material employment disadvantage [and] affect[ed] [her] future career prospects.”
Wagner v. Campbell, 779 F.3d 761, 766 (8th Cir. 2015).
Fourth, the plaintiff has shown that her employer — including Govitz and Kelly — knew
about her disability, based on the circumstances discussed in detail above.
Fifth, the plaintiff has demonstrated that the position remained open until it was filled by a
replacement — Shearer. The defendant contends that Schram was not “replaced” and that her
position was “eliminated” by a reduction in force. But that position is belied by Shearer’s and
Velasquez’s testimony that Shearer assumed all of Schram’s duties and held the same job title that
Schram had after he took her position. The defendant contends that Shearer carried on performing
certain other obligations from his position at Multibase, but those duties, which are not described
in any detail in the record, appear to have been transient and not made a permanent feature of the
IAM regional marketing role: Velasquez testified that his “extra” duties terminated within six
months after Shearer started the IAM job. On those facts, a jury reasonably could conclude that the
plaintiff was “replaced” by Shearer and that her position was not, as the defendant contends,
“eliminated” as part of the global RIF. Barnes v. GenCorp Inc., 896 F.2d 1457, 1465 (6th Cir. 1990)
(“[A] person is not replaced when another employee is assigned to perform the plaintiff’s duties in
addition to other duties, or when the work is redistributed among other existing employees already
performing related work. A person is replaced only when another employee is hired or reassigned
to perform the plaintiff’s duties.”).
Finally, the plaintiff has offered sufficient evidence of a causal connection between her
disability and her redeployment, because, for all the reasons discussed above, the jury reasonably
could conclude that Govitz instigated and agitated for her reassignment based on unlawfully
discriminatory resentment toward the plaintiff after she took medical leave to obtain treatment for
her debilitating eye injury. Demyanovich, 747 F.3d 433 (“[The plaintiff’s disability was a ‘but for’
cause of his termination: He would not have been terminated had he not asked about taking leave
to treat his medical conditions.”).
The defendant’s arguments relating to causation, nominal responsibility for the redeployment
decision, and pretext all are without merit, for the same reasons discussed above.
D. Gender Discrimination
Schram alleges that her redeployment and replacement by a male (Gifford Shearer) violated
the Michigan Elliott-Larsen Civil Rights Act. See Mich. Comp. Laws § 37.2202(1)(a)) (prohibiting
employment discrimination “because of . . . sex”). The defendant contends that the gender
discrimination claim must be dismissed because the plaintiff has failed to show that she was replaced
by a male or treated differently from any similarly situated male. The defendant also argues that the
plaintiff has not established any causal connection between her sex and any adverse action, or that
the defendant’s placement of the plaintiff on a “redeployment list” in December 2014 was mere
pretext to cover unlawful discrimination.
Again, the the McDonnell Douglas framework comes into play. The prima facie case
consists of proof that ”(1) [the plaintiff] was a member of a protected class, (2) she was subject to
an adverse employment action, (3) she was qualified for the position, and (4) others, similarly
situated and outside the protected class, were treated differently.” Ondricko v. MGM Grand Detroit,
LLC, 689 F.3d 642, 653 (6th Cir. 2012) (citing Town v. Mich. Bell Telephone Co., 455 Mich. 688,
568 N.W.2d 64 (1997)).
The plaintiff has substantiated her claim for gender discrimination. It is undisputed that the
plaintiff is a member of a protected class (female). For all of the same reasons discussed above, the
record adequately demonstrates that the plaintiff was subjected to an “adverse action” when she was
transferred from her permanent IAM marketing role to a temporary position, from which she later
was terminated when the position expired, and that she was qualified for the IAM regional marketer
The plaintiff also has submitted sufficient evidence from which a jury reasonably could
conclude that the male employee who replaced Schram was treated more favorably than she was,
since he was not terminated (in fact was given her job after she was “bumped” from it), and was paid
more than $40,000 more, despite the admitted fact that he had no experience in IAM marketing
before 2015, and that his other marketing experience spanned at most three years. Contrast that with
Schram’s more than a decade of experience in the IAM role and related positions with Dow.
The plaintiff also has offered evidence that the defendant’s stated reasons for its actions —
poor performance — was a pretext for unlawful discrimination. The jury could conclude — with
good reason — that the purported poor performance cited by the defendant as grounds for the
redeployment was mere pretext fabricated and relied upon to appease Velasquez’s unlawfully
discriminatory desire to favor his male subordinate and acquaintance Shearer, by “bumping” Schram
out of her job in order to make way for Shearer. In particular, Velasquez’s true underlying
motivation is apparent in the mid-December email exchange where he pushed for an earlier
notification to Schram, presumably because Shearer was himself already under a 60-day
redeployment clock, as a result of the “redistribution” of the duties of his existing position at
Velasquez asserts that it was “not his decision” to replace Schram with Shearer, and that
Kelly made the call; but that testimony is belied by Kelly’s insistence that she was not involved,
which is corroborated by her conspicuous silence during the December email exchange, contrasted
with Velasquez’s active participation and insistence on advancing the timeline. Velasquez’s role
in the decision also is substantiated by the email sent by Shearer to the Dow Corning human
resources department stating that Shearer had consulted his manager and that “he” (meaning
Velasquez), had approved the hiring and relocation process.
The defendant’s arguments relating to the purported RIF justification, absence of causation,
and non-discriminatory motive all are without merit, for the same reasons discussed above.
Moreover, the evidence of pretext as to the gender discrimination claim also is bolstered by Nobels’s
admission, documented by Dow’s HR investigator, that Schram deliberately was “bumped” from
her job so that she could be replaced by a male, which turned out to be Shearer. And Velasquez’s
underlying motive of displacing Schram to favor Shearer is evident from his attempts to accelerate
the timeline for notifying Schram about the redeployment.
The plaintiff has offered sufficient evidence to defeat summary judgment and proceed to trial
on her pleaded claims. She did not plead or establish an FMLA interference claim, however, and
will not be allowed to advance that theory at trial.
Accordingly, it is ORDERED that the defendant’s motion for summary judgment [dkt. #36]
s/David M. Lawson
DAVID M. LAWSON
United States District Judge
Dated: January 8, 2018
PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney or party of record herein by electronic means or first
class U.S. mail on January 8, 2018.
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