Gason v. Dow Corning Corp.

Citation: 674 F. App'x 551Docket: No. 16-1443

Court: Court of Appeals for the Sixth Circuit; January 5, 2017; Federal Appellate Court

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Lucia Gasón, a Belgian citizen and employee of Dow Corning Corporation, transitioned to a permanent position in Michigan in 2012 after 14 years with the company’s European affiliate. Following her relocation, Dow Corning ceased sponsorship of her green card application, terminated her employment, and reassigned her to Belgium. Gasón subsequently filed a lawsuit against Dow Corning citing fraudulent misrepresentation, promissory estoppel, and breach of contract. The district court ruled in favor of Dow Corning, granting their motion for summary judgment.

Gasón had previously accepted a promotion that entailed relinquishing her Belgian contract, which included substantial benefits, for a director position in Michigan. Although discussions around her promotion included terms indicative of localization, such as relocation benefits, no explicit promise regarding green card sponsorship was made. Gasón understood that her new position would be "at will," allowing termination at any time. 

The process for obtaining a green card is lengthy and involves the employer submitting a Program Electronic Review Management (PERM) application to demonstrate that no qualified U.S. citizens are available for the job. This includes documenting job requirements, verifying the employee meets these criteria, and conducting a recruitment process. The Department of Labor typically audits such applications, especially for positions requiring extensive experience, which can further delay the green-card process.

Dow Corning engaged the Fragomen law firm to assist with Lucia Gasón's green-card application following her relocation. To complete the application, Fragomen required various documents from both Dow Corning and Gasón. Ranae Ratajczak, Dow Corning's relocation specialist, initiated this process by emailing Gasón a PERM questionnaire in August 2012. After multiple follow-ups over several months without a response, Dow Corning underwent a restructuring that eliminated Gasón's position as Director of Indirect Capital Procurement, though she accepted a new role as Procurement Shared Services Manager, necessitating a fresh PERM application.

By September 2013, a new job description for Gasón was prepared, and Ratajczak sent her a revised PERM questionnaire. Gasón delayed her response until October 2013, and after providing the completed questionnaire, she took nearly two months to submit additional required information to finalize the application. Ratajczak informed Gasón that she needed to complete a job requirements chart due to the necessity of her professional knowledge.

In April 2014, after reminders highlighting the urgency of the situation, Gasón completed the requirements chart. Fragomen then sought a prevailing-wage determination from the Department of Labor, while Dow Corning published job postings in August 2014 following receipt of the wage determination.

However, Gasón faced criticism regarding her leadership during this process. In September 2014, shortly after Dow Corning's job advertisement was posted, Gasón was terminated from her position. Her supervisor indicated that the green-card application would cease, offering her a different role in Belgium starting in 2015. Prior to her termination, Relocation Administrator Kim Butler requested Fragomen to pause any actions regarding Gasón’s application, hinting at a potential move back to Belgium.

Gasón filed her initial complaint and motion for a preliminary injunction in March 2015 to prevent her transfer to Belgium, claiming retaliation for discrimination based on her ancestry and ethnicity. The district court denied the injunction. In April 2015, she amended her complaint to include new claims on appeal, alleging that Dow Corning made fraudulent representations regarding her green card application, which led to liability under promissory estoppel and a breach of contract. Gasón claimed Dow Corning promised to secure a green card for her and that it misrepresented its intentions, resulting in a false impression of pursuing the green card.

The parties later agreed to dismiss the retaliation and discrimination claims, leaving the fraudulent misrepresentation, promissory estoppel, and breach of contract claims. Dow Corning sought summary judgment, arguing that no promise to obtain a green card existed, the promise was not sufficiently specific to be enforceable, and no contract was formed. The district court granted Dow Corning's motion, concluding that there was no evidence of a promise to obtain a green card for Gasón, and her claims lacked specificity and mutual agreement.

The appeal followed this decision. The standard of review for the summary judgment is de novo, meaning the appellate court assesses the case without deference to the district court’s conclusions. Under Michigan law, the elements of fraudulent misrepresentation include a material false representation, knowledge of its falsity by the defendant, intent for the plaintiff to rely on it, reliance by the plaintiff, and resulting injury. "Silent fraud," which involves the suppression of truth, is also actionable if there is a duty of disclosure. Gasón's claim of fraudulent misrepresentation consists of two parts.

Gasón alleges that Dow Corning fraudulently promised to sponsor her green-card application during discussions related to her 2011 promotion, and later committed silent fraud by failing to inform her of its intention to cease sponsorship efforts in 2014. The court found no evidence that Dow Corning knew its representation regarding localization and sponsorship was false; rather, evidence indicated that Dow Corning actively supported Gasón’s application by hiring outside counsel and facilitating necessary communications. The court ruled that while Dow Corning localized Gasón's position, it did not promise to obtain a green card, as it lacked the authority to do so. Gasón's subjective belief that there was a promise does not constitute fraudulent misrepresentation since the information provided was not objectively false. 

Regarding silent fraud, the court noted that such a claim requires a legal duty of disclosure, which arises when a defendant provides incomplete but truthful responses to specific inquiries from a plaintiff. There was no evidence that Gasón made a specific inquiry about her application status, and no legal precedent supported the notion that Dow Corning had a duty to disclose the cessation of sponsorship. Furthermore, as Dow Corning maintained the right to terminate Gasón's employment at will, it was not obligated to inform her of any changes to her application process. Consequently, both claims of fraud were dismissed.

A promissory estoppel claim in Michigan requires four elements: 1) a clear promise, 2) reasonable expectation by the promisor that the promise would induce substantial action from the promisee, 3) actual reliance or forbearance by the promisee, and 4) enforcement of the promise to avoid injustice. The doctrine is applied cautiously, emphasizing that the promise must be definite. In Gasón's case, her amended complaint alleges that Dow Corning promised to sponsor her green card application, implied by its offer to localize her employment in the U.S. This constituted a clear promise, as it suggested Dow Corning would make reasonable efforts to assist her immigration status. The court noted that understanding the promise's existence and scope involves examining the transaction's context and the parties' relationship. The district court’s finding that Dow Corning made no commitment regarding Gasón’s immigration status was contradicted by the relationship dynamics and Dow Corning's actions. However, it was confirmed that Gasón accepted at-will employment, delayed her application by not submitting paperwork, and that Dow Corning made substantial efforts to fulfill its promise. Requiring Dow Corning to continue sponsorship or pay damages would undermine its rights under the at-will contract and overlook Gasón's role in the delays. Therefore, the court affirmed the district court's ruling on the promissory estoppel claim, albeit on different grounds. 

For a breach-of-contract claim, proof of an existing contract is necessary, which includes mutuality of agreement requiring a meeting of the minds on material facts. This mutuality is assessed objectively, based on the parties' expressed words and actions.

Dow Corning could only promise to sponsor Gasón's green-card application while she was a localized employee, as it lacks the authority to issue green cards and Gasón's employment was at-will. There was no mutual agreement on Dow Corning obtaining a green card for her. Dow Corning fulfilled its implied promise to make a good-faith effort to support her application by retaining legal counsel and encouraging her participation in the process. The court did not err in granting summary judgment on this claim. Additionally, under Michigan law, there is no implied covenant of good faith and fair dealing in employment contexts. Gasón's attempt to separate her green-card sponsorship claim from her employment contract is contradicted by her prior assertions that the sponsorship was integral to her localized employment. Furthermore, she did not include a claim for breach of this implied covenant in her amended complaint, resulting in a waiver of the argument. The district court's summary judgment in favor of Dow Corning on Gasón's breach-of-contract claim is affirmed.