Longtime Dow employee replaced after leave gets trial on FMLA retaliation claim
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Thursday, January 11, 2018

Longtime Dow employee replaced after leave gets trial on FMLA retaliation claim

By Lorene D. Park, J.D.

A marketing employee with decades of documented good performance and promotions at Dow, who was removed from her position for purported performance problems and replaced by a male employee (at a higher salary despite his lesser qualifications) after she took medical leave for an eye injury suffered while on business travel, raised triable issues on her FMLA retaliation and state-law disability and gender discrimination claims. Denying summary judgment, the federal district court in Michigan pointed to evidence of animosity by a manager with respect to the employee’s medical leave as well as to the timing of her “redeployment” to another position (Schram v. Dow Corning Corp., January 8, 2018, Lawson, D.).

Decades of positive reviews and promotions. Since May 1986, the employee worked in various positions with Dow, receiving promotions and positive reviews. By 2008, she was responsible for more than $1 billion in sales of various products to customers in aviation, electronics, and other markets in “Industrial Assembly and Maintenance” (IAM). She developed marketing plans and built business relationships, among other duties. In 2009, she was promoted to a new position as “business center analyst.”

Pressured to return to IAM. In December 2013, a Dow manager asked the employee to take an IAM regional marketing role because she would be “perfect” and had “done this job for 10 years.” The employee was not interested but the manager persisted, lying that the employee’s job was being eliminated. The employee was reluctant in part because during her absence from the IAM, there was significant turnover with “inconsistent” leadership and customer complaints. She felt she was “starting over” but accepted the role. By January 2014, she completed a marketing plan and received “kudos.” Her review was generally positive but the manager included some criticisms that the employee found inconsistent with comments “telling me I’m her rock star.”

Medical leave. Things went downhill after the employee was struck in the forehead by another airline customer’s bag while on a business trip. She was diagnosed with a detached retina and needed emergency surgery, scheduled for September 18, 2014. She informed her manager, who reacted angrily, said she should “postpone the surgery,” and expressed disbelief over the potential for blindness. The employee had surgery and worked from home while recovering. She logged 10 “sick days,” though FMLA leave was not mentioned.

The employee returned to work on October 6 and testified that her return was “seamless.” She told her manager, when asked, that she could “absolutely” do her job, but the manager no longer met with her monthly as usual, and she was no longer included in social events with the manager and other colleagues. She was also moved from a large office to a small cubicle, had her work frequently questioned, and was selected for a drug test. She requested a large computer monitor to see but the manager refused. In addition, in an October 10 group meeting while sitting across from the employee, the manager said “Do you see me here? Here I am. Sharon, I’m over here.”

“Redeployment” and termination. Unbeknownst to the employee, within a couple of months after she returned, discussions were underway to replace her with a male employee from another Dow subsidiary. It was undisputed that he assumed all the employee’s former IAM duties and was given her same job title, though at a higher salary. None of the Dow supervisors wanted to claim responsibility for the decision, but November 2014 emails showed the employee’s direct manager and the manager’s superiors were involved.

Emails also showed disagreement on when the employee should be told of her “redeployment.” A letter penned in mid-December stated that her “skills are not currently aligned with the needs” of the regional position. In a December 30 email to HR, the employee’s manager stated that she had informed the employee, who responded that “she was confused because last Dec (‘13) we offered her the role because she knew the job and the market the best. Now, just 1 year later, we are telling her that her skills do not align.” The employee testified that the manager also said that her “job had been eliminated,” but the manager would do her a “favor” and let her be redeployed. The employee was put in a temporary position in another unit and allegedly “forced to retire.”

Meanwhile, the employee challenged the negative comments on her review, complaining to HR in January 2015 that she had previously always received “raving reviews,” but HR found no evidence of discrimination and indicated she had been “bumped” from her position by an entirely different individual than the one who actually replaced her.

FMLA retaliation. Denying Dow’s motion for summary judgment on the FMLA retaliation claim, the court found “abundant evidence” supporting her prima facie case. She took FMLA-qualifying leave for surgery to repair a detached retina, which if left untreated could cause blindness, and the evidence suggested that her leave triggered poor treatment at the hands of the manager who supervised her, among others. Dow’s contention that the eye injury was not “serious” and did not impair her ability to do her job was “groundless and unsupported by the record,” concluded the court, noting that she had no vision in one eye for weeks after surgery, could not drive effectively, and was on a travel restriction while recovering.

Moreover, evidence of causation included that she was given her first-ever poor performance review after she returned from leave, and her manager’s campaign to oust the employee was well underway within six weeks of her return. Also, the decision to replace her less than two and a half months after her return was based on a single poor review from the manager; none of the other purported decisionmakers did an independent review to verify the supposed abrupt decline in the employee’s performance, which supported a cat’s paw theory of liability. In sum, a jury could find the manager fabricated evidence of poor performance in retaliation for the employee’s medical leave, thereby violating the FMLA.

On the other hand, the court concluded that the employee did not plead and had not established an FMLA interference claim. She asserted that Dow failed to offer her any FMLA leave, but she failed to allege that she was denied any leave or otherwise harmed by the alleged notice failure.

Workers’ comp retaliation. The court denied summary judgment on the employee’s workers’ comp retaliation claim, finding sufficient evidence that her manager instigated her redeployment because the manager resented the employee’s exercise of her right to seek necessary medical treatment for a work-related injury.

Disability discrimination. The employee’s state-law disability discrimination claim would also advance to trial. Her testimony that she had no vision in her left eye for weeks after surgery and that it took more than six months for her vision to return to near normal adequately established that she suffered from a condition that substantially limited the major life activities of seeing and working, among others. And she also offered sufficient proof that her manager perceived her to have an impairment and mocked her limited vision. Further, her redeployment was an adverse employment action, and she offered evidence of a causal connection to her disability for the same reasons discussed with respect to the FMLA retaliation claim.

Sex discrimination. Summary judgment was also denied on the employee’s state-law gender discrimination claim based on evidence that her manager’s superior expedited the employee’s redeployment and favored the male candidate, who was paid over $40,000 more than the employee to do the same job, despite the admitted fact that he had no experience in IAM marketing before 2015 as compared to the employee’s more than a decade of experience. This, combined with evidence that the performance-based reasons for redeploying the employee were pretextual, was enough to raise triable issues.

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