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Schuler v. The Dow Chemical Co.

United States District Court, W.D. New York

January 2, 2018

KIM R. SCHULER, Plaintiff,



         Pursuant to 28 U.S.C. §636(c), the parties have consented to disposition of this case by a United States Magistrate Judge. (Dkt. No. 31). Presently before the Court is the joint motion for summary judgment filed by defendants the Dow Chemical Company and ANGUS Chemical Company. (Dkt. No. 39). The Court heard oral argument on the motion on December 14, 2017. For the following reasons, the defendants' motion is granted.

         BACKGROUND [1]

         At all relevant times, ANGUS Chemical Company, a wholly-owned subsidiary of the Dow Chemical Company, operated a site in Niagara Falls, New York. (Defts. Stmt. ¶3). The Niagara Falls site processed chemicals and tested and packaged a variety of products for use in the research and pharmaceutical industries. (Id. ¶4). The site was relatively small - approximately only twelve full-time employees worked there. (Id. ¶7). Plaintiff Kim Schuler was hired as a full-time Administrative Specialist at the Niagara Falls site in October 2008. (Defts. Stmt. Tab B Ex. 4). The defendants do not specify which entity - Dow or ANGUS - actually employed Schuler, so for purposes of the instant motion, the Court will treat both entities as having been her employer.

         As an Administrative Specialist, Schuler reported to Mark Deuble, the Niagara Falls site's logistics leader, and John Gabrielson, the facility manager. (Defts. Stmt. ¶¶11, 15). Schuler was responsible for performing a variety of functions at the site, including faxing items, locating batch records, photocopying, scanning, filing, serving as a backup for customer service by answering the phone, serving as a backup for an employee in the warehouse who handled labeling, ordering supplies for the lunchroom and office, monitoring the stock of supplies, conducting on-site safety orientations, tracking the hours of contract employees and contractors who were on-site, distributing the mail on a daily basis, assisting in new employee orientation training and the documentation process, bringing in food for luncheons, and processing production orders. (Id. ¶¶19-33). Schuler also performed a role in the site's Environment, Health & Safety Program. (Id. ¶46). In order for Schuler to perform many of her job duties, she had to be physically present at work. (Id. ¶¶35-40, 132). Only twenty percent of Schuler's duties could be performed from home. (Id. ¶132).

         In April 2011, Schuler was diagnosed with multiple sclerosis (“MS”). (Id. ¶52). Although the defendants' reaction to Schuler's diagnosis was “supportive” (id. ¶86), Schuler states that Deuble and Gabrielson “sent [her] home” and placed her on “short-term disability” upon learning of her diagnosis because they were concerned she might pose a safety risk to the site (Pltf. Stmt. Ex. B (Pltf. Dep. Tr.) at 92-100).

         Schuler's MS symptoms consisted of “minor flare-up[s]” that lasted a couple days and “exacerbation[s]” that lasted a couple weeks. (Id. at 135). The flare-ups and exacerbations occurred without warning. (Id.). Schuler endured tremors, crying spells, body pain, foot problems, unsteadiness, and weakness during an exacerbation. (Id. at 101-02). When an exacerbation occurred, Schuler could not work and did not know whether she would need to be out of work for a couple days or a couple weeks. (Defts. Stmt. ¶56). Schuler states that she suffered an exacerbation after Deuble and Gabrielson sent her home in April 2011. (Pltf. Stmt. Ex. B (Schuler Dep. Tr.) at 97, 100). She did not return to work from that absence until July 2011. (Defts. Stmt. ¶¶57-58). Schuler had a second exacerbation in the spring of 2012, causing her to miss more work. (Id. ¶¶80-81). Schuler had a third exacerbation in the summer of 2013, causing her to be out of work from August 6 until September 9. (Id. ¶82). Schuler missed work for other reasons as well, such as vacations and illnesses unrelated to her MS. (Pltf. Stmt. Ex. K). In 2012 and 2013, Schuler was absent from work at least once a month. (Defts. Stmt. ¶83). As of September 13, 2013, Schuler had designated 213 hours of absences in 2013 as being for medical leave. (Id. ¶84).

         Schuler's work accumulated during her absences and required her to catch up on it when she returned to work. (Id. ¶93). Some of the work that accumulated could not wait for Schuler to return, and other employees had to step in to handle the work, sometimes incurring overtime. (Id. ¶¶94-95). Schuler's coworkers at the Niagara Falls site were essentially not allowed to take vacations during Schuler's absences. (Id. ¶96). Sometimes it was necessary for the site to utilize the services of a contractor to handle some of Schuler's job duties while she was out. (Id. ¶97).

         Around the time Schuler returned to work from her leave of absence on September 9, 2013, the defendants formed a “Medical Review Board” to review her employment status. (Id. ¶103). The Medical Review Board consisted of Dori Ana Peku (HR), Danielle Mehalo (Legal), Eileen Bonner (Medical), Deuble (Leadership), Gabrielson (Leadership), Ernest Green (Leadership), Angelia Wilson (HR), and Mike Dizer (Ethics). (Id. ¶104). Based upon Schuler having purportedly exhausted all of her short-term medical leave and the effect Schuler's absences were having on the Niagara Falls site, the Medical Review Board placed Schuler on short-term medical leave, thereby allowing her to receive her salary and benefits until February 2014 and to apply for long-term disability benefits. (Id. ¶¶106-07). Under the defendants' short-term medical leave policy, an employee is eligible for six months' paid medical leave. (Defts. Stmt. Tab D (Peku Dep. Tr.) at 75, 87, 91). The Medical Review Board's decision to place Schuler on short-term medical leave is somewhat confusing given that the Board had just concluded that Schuler had already exhausted all of her short-term medical leave.

         At a closed-door meeting on September 19, 2013, Deuble, Gabrielson, and Peku (appearing by telephone) informed Schuler that she was being placed on short-term medical leave. (Defts. Stmt. ¶¶109, 111; Pltf. Stmt. Ex. B (Pltf. Dep. Tr.) at 173). Peku informed Schuler that the defendants were “letting [her] go that day” and she had “to get [her] belongings and not come back on the property.” (Pltf. Stmt. Ex. B (Pltf. Dep. Tr.) at 173). According to Deuble, “there was not an opportunity [for Schuler] to return to work” after the meeting. (Defts. Stmt. Tab C (Deuble Dep. Tr.) at 172, 183). Soon after Schuler's departure, the defendants posted her position and hired her replacement. (Id. at 174).

         On September 24, 2013, five days after the closed-door meeting, Peku sent Schuler a letter purporting to “summarize [her] employment status.” (Defts. Stmt. Tab B Ex. 20). The letter states, in relevant part:

Since January 2011, we have, as required under federal laws, juggled schedules and assignments within the workgroup in order to keep your job open should you have been able to return to work in that job on a full time basis before the expiration of your 12 week FMLA leave period. Now that your 12 weeks of FMLA leave has been exhausted, the business has assessed the ability to keep your present job open.
As of September 19, 2013, the business can no longer accommodate your intermittent leaves. Your federal statutory intermittent medical leave for your current medical condition began August 6, 2013. If you are unable to return to work on a full time basis prior to February 7, 2014, which is the expiration of 6 months of leave under the Dow Medical Leave Policy, one of two things will happen:
a. If you are approved for long-term disability (LTD) benefits by the LTD carrier under the Company's Long Term Disability Plan (LTD Plan), you will then switch to the LTD benefits as summarized in the company's LTD Plan Summary Plan Description and your employment with Dow will end. . . .
b. If you are not approved for LTD benefits, you will, consistent with company practice, be separated from employment effective February 7, 2014.


         Peku's letter is confusing in several respects. First, the letter seems to leave open the possibility Schuler could return to work even though Peku informed Schuler a few days earlier to “get [her] belongings and not come back.” Second, the letter makes no mention of Schuler having exhausted her short-term medical leave, which was one of the Medical Review Board's purported reasons for terminating her employment. Third, the letter gives Schuler an additional six months of short-term medical leave even though the Medical Review Board (of which Peku was a member) had just concluded that Schuler had exhausted her short-term medical leave. Fourth, the letter refers to Schuler having exhausted her Family and Medical Leave Act (“FMLA”) leave time, but the defendants take the position in this lawsuit that Schuler was not even eligible for FMLA leave.

         Peku's letter also references Schuler's ability to apply for long-term disability benefits. On December 16, 2013, Schuler submitted such an application to a third-party insurance provider. (Defts. Stmt. ¶77). When asked why she could not engage in any gainful employment, Schuler stated that ...

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