United States District Court, W.D. New York
KIM R. SCHULER, Plaintiff,
THE DOW CHEMICAL COMPANY and ANGUS CHEMICAL COMPANY, Defendants.
DECISION AND ORDER
MICHAEL J. ROEMER, UNITED STATES MAGISTRATE JUDGE.
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.
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.
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.
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).
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.
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).
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
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).
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.
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.
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 ...