UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

NORTHERN DIVISION 

LUCIA GASON, 

 Plaintiff, Case No. 15-cv-10770 

v Honorable Thomas L. Ludington 

DOW CORNING CORPORATION, 

 Defendant. 

__________________________________________/ 

ORDER DENYING MOTION FOR PRELIMINARY INJUNCTION 

On March 3, 2015, Plaintiff Lucia Gason filed a complaint alleging that her employer 

Dow Corning Corporation transferred her to Belgium in retaliation for filing a race and national 

origin discrimination complaint with the Equal Employment Opportunity Commission. She 

alleges that Dow Corning retaliated against her in violation of 42 U.S.C. § 1981, Title VII of the 

Civil Rights Act of 1964, and Michigan’s Elliott-Larsen Civil Rights Act. 

 On March 13, 2015, Gason filed a motion for preliminary injunction seeking, inter alia, 

to enjoin Dow Corning from forcing her to relocate to Belgium in April 2015. Gason’s request 

for a preliminary injunction prohibiting Dow Corning from transferring her to Belgium will be 

denied. 

I.

 Gason is Belgian citizen of Japanese and Belgian ancestry.1 Compl. ¶ 10. She began 

working with Dow Corning in Belgium in August 1993. Id. ¶ 9. 

 

1

 The facts asserted in Gason’s Complaint and briefs will be accepted as true to the extent that Dow Corning does 

not dispute them. Likewise, the facts in Dow Corning’s papers will be accepted as true to the extent that Gason does 

not dispute them. Where the alleged facts relevant to the instant motion for preliminary injunction differ, the Court 

will note that dispute. 

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 In February 2007, Dow Corning transferred Gason to its headquarters in Midland, 

Michigan, as an expatriate under a Belgian contract. Id. ¶ 11. About five years later, in 

December 2011, Dow Corning promoted Gason to Director of Procurement. Because this was a 

Director-level position, Gason had to be “localized” and give up her expatriate status.2

 Gason 

alleges that Dow Corning promised to apply for a Green Card on Gason’s behalf since she was 

giving up her expatriate status. Id. ¶ 16. Because applying for a green card is a lengthy process, 

Gason was localized under a L1-A visa in April 1, 2012.3 Id. ¶ 17. Dow Corning acknowledges 

that it began applying for a green card on Gason’s behalf. 

A.

 In September 2014, Shrenik Nanvati (Gason’s immediate manager) and the Procurement 

leadership decided to remove Gason from the role of Procurement Shared Services Manager. 

Stokes Decl. ¶ 4. Dow Corning contends that the decision “was based on serious and continuing 

problems that had come to Nanavati’s attention during Gason’s time in the role.” Def.’s Resp. 4. 

Gason disputes this allegation; for purposes of Gason’s motion, however, this dispute of fact 

need not be resolved. 

Heidi Landry Chan, Vice President of Procurement and Logistics, believed that Gason 

could be an effective category manager; however, no category manager position was open at the 

time. Def.’s Resp., Stokes Decl. ¶ 5. Ms. Chan determined that she could create a new category 

manager position, but that it would have to be based in Belgium to support Dow Corning’s 

operations in Europe. Gason contends that, in September 2014, Dow Corning informed her that 

she would be transferred to Belgium in June 2015 for the newly-created category manager 

position. Pl.’s Mot. Prel. Inj. ¶ 12. After the decision was made to transfer Gason to the new 

 

2

 At the hearing, Gason’s counsel explained that giving up expatriate status meant that Gason gave up her Belgian 

pension, her car and insurance allowance, and tax advice, among other things. 

3

 L1-A visas expire after seven years, with credit (or “recoupment”) given for time spent out of the Country. 

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category manager position in Belgium, the process of seeking a green card for her was 

abandoned. Def.’s Resp., Stokes Decl. ¶ 6. 

 At the hearing, Gason’s counsel contended that Dow Corning had always intended to 

transfer Gason when her visa expires—and not before then, which is why the June transfer date 

was selected. And Gason’s counsel further explained that later research confirmed that Gason’s 

visa expires in October 2015, and that, accordingly, the transfer date should be in October, not in 

June or April. 

 In contrast, Dow Corning’s counsel disputes that Dow Corning ever tied Gason’s transfer 

to the expiration of her visa. He further disputed that Dow Corning had ever identified June 

2015 as Gason’s official transfer date. 

For purposes of Gason’s motion for preliminary injunction, this Court will accept 

Gason’s assertion in her complaint—that Dow Corning represented to Gason in September 2014 

that her transfer date was June 2015—as true. 

B. 

 A month after Mr. Nanvati informed Gason of his decision to transfer her to Belgium, in 

October 2014, Gason filed an ethics complaint with Dow Corning attorney Courtney Goldberg, 

claiming that her supervisor Ms. Chan was discriminating against her because of her ancestry 

and ethnicity. Compl. ¶ 28. Gason alleges that Ms. Chan “repeatedly told Gason that Chan 

strongly preferred to work with native English speakers.” Id. ¶ 29. 

 On November 7, 2014, Human Resources Director Stokes met with one of Gason’s peers, 

Heena Mehta, to discuss Mehta’s concerns about Gason’s conduct. Mehta explained that Gason 

had asked Mehta to “plead her case to Kristy, to try and save her job.” Def.’s Resp. Stokes Decl. 

¶ 9. Mehta felt that Gason’s request was coercive and that Gason was undermining support for 

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whomever replaced her as Procurement Shared Services Manager. Id. About two weeks later, 

on November 10, 2014, Dow Corning suspended Gason with pay while it investigated the 

assertions. Compl. ¶ 30. 

On November 12, Stokes met with Gason to review the outcome of the investigation. 

Stokes informed Gason that she could only return to work if she agreed to the terms of a “Last 

Chance Agreement.” The Last Chance Agreement listed the alleged instances of misconduct and 

warned that “[i]f you violate Dow Corning’s Code of Conduct, or if you do not positively change 

your actions and behaviors in accordance with Dow Corning’s policies, further disciplinary 

action will be taken up to and including termination of employment.” Def.’s Resp. Stokes Decl. 

Ex. 3. Stokes also offered Gason the alternative of accepting a severance package. Compl. ¶ 34. 

C. 

On December 30, 2014, Gason filed a charge of discrimination with the EEOC alleging 

discrimination based on national origin/ancestry and retaliation. Compl. ¶ 35. In her EEOC 

complaint, she alleged discrimination “because [of] her national origin including her ancestry, 

culture, linguistic characteristics common to a specific ethnic group, or accent, or characteristics 

of this status.” Id. at ¶ 54. 

D. 

 About one month later, on January 28, 2015, Dow Corning advised Gason that she would 

be transferring to Belgium in early April 2015. Id. at ¶ 36. Dow Corning expected her to “report 

to your assigned work location in Belgium on Tuesday April 7, 2015.” Def.’s Resp. Stokes 

Decl. Ex. 4. 

II. 

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A preliminary injunction is an extraordinary remedy “which should be granted only if the 

movant carries his or her burden of proving that the circumstances clearly demand it.” 

Overstreet v. Lexington-Fayette Urban Co. Gov’t, 305 F.3d 566, 573 (6th Cir. 2002). To 

determine whether a preliminary injunction should issue, the Court must consider four factors: 

(1) the movant’s likelihood of success on the merits; (2) whether the movant will suffer 

irreparable harm without the injunction; (3) whether granting the injunction will cause 

substantial harm to others; and (4) the impact of the injunction on the public interest. Workman 

v. Bredesen, 486 F.3d 896, 905 (6th Cir. 2007). These four factors “are factors to be balanced 

not prerequisites that must be met.” Six Clinics Holding Corp., II v. Cafcomp Syst., 119 F.3d 

393, 400 (6th Cir. 1997). 

A.

 Under this standard, Gason must first show that there is a likelihood of success on the 

merits of her claims; that is, Dow Corning retaliated against her in violation of Title VII, § 1981, 

and ELCRA. Dow Corning claims that Gason cannot make this showing because (1) she had not 

exhausted her administrative remedies with respect to her Title VII claims; (2) she cannot 

establish a prima facie case of retaliation under § 1981; and (3) she cannot show entitlement to 

injunctive relief pursuant to ELCRA. 

i. 

 Gason first alleges that Dow Corning retaliated against her after she filed a complaint 

with the EEOC in violation of Title VII. According to Gason, her EEOC complaint alleged that 

Dow Corning unlawfully discriminated against her “because [of] her national origin including 

her ancestry, culture, linguistic characteristics common to a specific ethnic group, or accent, or 

characteristics of this status.” Compl. ¶ 54. Under Title VII, once an individual files a charge 

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alleging unlawful employment practices, the EEOC must investigate the charge and determine 

whether there is “reasonable cause” to believe that it is true. See 42 U.S.C. § 2000e-5(b) (1998). 

Where the EEOC investigates a charge and, after 180 days, either concludes that there is no 

“reasonable cause” to believe it is true or fails to make a finding of “reasonable cause,” the 

EEOC must notify the aggrieved individual. See 42 U.S.C. § 2000e-5(f)(1). Alternatively, if the 

EEOC finds “reasonable cause” to believe an employer has violated Title VII but chooses not to 

bring suit on behalf of the federal government, the EEOC will issue a “notice of right to sue” on 

the charge of the aggrieved party. See 29 C.F.R. § 1601.28(b). “An individual may not file suit 

under Title VII if she does not possess a ‘right to sue’ letter from the EEOC.” E.E.O.C. v. 

Frank’s Nursery & Crafts, Inc., 177 F.3d 448, 455-56 (6th Cir. 1999) (citing Rivers v. Barberton 

Bd. of Educ., 143 F.3d 1029, 1032 (6th Cir. 1998). 

 In accordance with Title VII’s statutory scheme, the Sixth Circuit has clarified that “for 

180 days after the filing of a charge, the EEOC retains ‘exclusive’ jurisdiction over the subject 

matter of that charge.” Frank’s Nursery, 177 F.3d at 456 (citing General Tel. Co. v. EEOC, 446 

U.S. 318 (1980). “This 180-day period is ‘critical to the statutory scheme.’” Id. (quoting EEOC 

v. Hearst Corp., 103 F.3d 462, 466 (5th Cir. 1997)). Therefore, “it is only at the termination of 

the 180-day period of exclusive jurisdiction that a ‘complainant whose charge is not dismissed or 

promptly settled or litigated’ may bring a lawsuit.” Id. (citing Occidental Life Ins. v. EEOC, 432 

U.S. 355, 361 (1977)). Accordingly, an aggrieved individual is barred from suing a private 

employer in federal court during that 180-day period without authorization from the EEOC. Id. 

 Here, Gason filed a complaint with the EEOC on December 30, 2014. Only about ninety 

of the required 180 days has elapsed since she filed that complaint, and she acknowledges that 

she has not received a right to sue letter or other permission to bring suit from the EEOC. 

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Because she has not complied with the administrative requirements of the statute, Gason cannot 

succeed on her Title VII claim. Jerome v. Viviano Food Co., 489 F.2d 965, 966 (6th Cir. 1974) 

(denying plaintiff’s request for preliminary injunction and dismissing suit, holding that an EEOC 

opportunity for investigation and conciliation is at the heart of the Title VII remedy and may not 

be avoided by a litigant in order to bring a judicial complaint.). Accordingly, Gason’s Title VII 

claim is premature, and therefore she has not demonstrated a likelihood of success on the merits 

of her of Title VII claim at this time. Accordingly, this claim cannot form the basis of her 

request for injunctive relief. 

ii. 

Dow Corning next claims that Gason cannot succeed on her § 1981 claim because the 

protected conduct at issue—the filing of an EEOC complaint—was based only on alleged 

national-origin discrimination. In this Circuit, a § 1981 claim based on national origin 

discrimination, as opposed to race discrimination, is not actionable. Amini v. Oberlin College, 

259 F.3d 493, 502 (6th Cir. 2001) (citing Saint Francis Coll., 481 U.S. at 613); Ana Leon T. v. 

Federal Reserve Bank of Chicago, 823 F.2d 928, 931 (6th Cir. 1987)). 

 In her complaint, Gason explains that she filed “a charge of discrimination with the 

EEOC alleging discrimination based on national origin/ancestry and retaliation.” Compl. ¶ 35. 

In her EEOC charge, Gason claims that Chan “had repeatedly told Gason that Chan strongly 

preferred to work with native English speakers.” Id. ¶ 28. But this comment would be indicative 

of a claim for national-origin discrimination, not race discrimination. The characteristic of 

speaking English as a first-language of a country of origin, and therefore Gason’s EEOC 

complaint charges Dow Corning with national-origin discrimination. See In re Rodriguez, 487 

F.3d 1001, 1008-09 (6th Cir. 2007) (collecting cases). Therefore, for purposes of her motion for 

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preliminary injunction, Gason has not shown that she engaged in protected conduct under § 1981 

which prohibits only race discrimination. 

iii. 

Dow Corning next claims that Gason cannot establish a prima facie case of retaliation in 

violation of ELCRA, which does prohibit national-origin discrimination and retaliation. To 

establish a prima face case of retaliation under ELCRA, a plaintiff must demonstrate that (1) the 

plaintiff engaged in protected conduct; (2) the exercise of the plaintiff’s civil rights was known 

to the defendant; (3) the defendant thereafter undertook an employment action adverse to the 

plaintiff; and (4) there was a causal connection between the protected activity and the adverse 

employment action. In re Rodriguez, 487 F.3d at 1011 (citing Barrett v. Kirtland Cmty. Coll., 

628 N.W.2d 63, 70 (Mich. Ct. App. 2001). “To establish causation, the plaintiff must show that 

his participation in activity protected by the [ELCRA] was a significant factor in the employer’s 

adverse employment action, not just that there was a causal link between the two.” Barrett, 628 

N.W.2d at 70 (emphasis added) (internal quotation marks omitted). In Michigan, “[s]omething 

more than a temporal connection between protected conduct and an adverse employment action 

is required to show causation where discrimination-based retaliation is claimed.” West v. 

General Motors Corp., 665 N.W.2d 468, 473 (Mich. 2003). 

For purposes of her motion for preliminary injunction, the only adverse action that Gason 

is claiming is that Dow Corning accelerated her transfer date to her new position in Belgium. 

Gason explains that in September 2014, Dow Corning informed her that she would be transferred 

to Belgium in June 2015 (about nine months later)—which was also the date that Dow Corning 

believed that her visa would expire. Compl. ¶ 26. In her papers, Gason claims that on January 

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28, 2014, Dow Corning accelerated her transfer date to April 20154

 just thirty days after she filed 

her discrimination claim with the EEOC, and therefore timing alone is sufficient to create an 

inference of causation. 

But the Michigan Supreme Court has held that temporal proximity alone is insufficient to 

create an inference that the protected conduct was a “significant factor” in the defendant’s 

decision to take an adverse action. See West, 665 N.W.2d at 472-73. At the hearing, Gason’s 

counsel identified another instance that allegedly supports an inference of retaliation: during a 

training session on March 23, 2015, Ms. Chan allegedly stated something to the effect of “It’s 

nice to be in a room with people who speak English.” This vague and unsubstantiated comment, 

made about two months after Dow Corning accelerated Gason’s departure date, is too attenuated 

to create an inference of causation. Accordingly, because Gason has not demonstrated a causal 

connection between her filing of the EEOC complain and the acceleration of her departure date, 

Gason has not shown a substantial likelihood of success on the merits of her claim. 

B.

 Although Gason has not demonstrated a likelihood of success on the merits, it is 

important to address the types of relief she has requested before addressing the remaining 

preliminary injunction factors. Her motion for preliminary injunction seeks seven forms of 

injunctive relief: (1) enjoin Defendant from transferring Gason to Belgium without consent of 

the Court; (2) require Defendant to maintain Gason’s employment in the United States until the 

Equal Employment Opportunity Commission has concluded its investigation; (3) require 

defendant to maintain Gason’s employment in the United States in a qualifying position by 

requiring Defendant to make a legitimate, good faith effort to secure for Gason the Green Card 

 

4

 Dow Corning disputes the factual allegation that it accelerated Gason’s departure date, contending that it never 

identified June 2015 as the official date and instead discussed a transfer as early as April 2015. 

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as previously promised; (4) require Defendant to maintain Gason’s employment in the United 

States while she makes alternate arrangements to remain the United States; (5) require Defendant 

to maintain Gason’s employment in the United States until the expiration of her visa so that she 

may wrap up her affairs, sell her home, and return to Belgium in an orderly manner; (6)mandate 

that Defendant stop engaging in any type of retaliation; and (7) provide such other relief as the 

Court deems just and equitable. 

 As Gason emphasizes, the only adverse action raised in the motion for preliminary 

injunction is the acceleration of her transfer from June 2015 to April 2015. Accordingly, any 

relief awarded must be related to and arise out of that adverse action. Therefore, the only form 

of injunctive relief available based on Gason’s papers is an injunction prohibiting Dow Corning 

from forcing Gason to relocate before June 2015—the original relocation date.5

 The Court will 

not enjoin Dow Corning from relocating Gason after that date. Gason acknowledges that Dow 

Corning’s decision to relocate her to Belgium in June 2015 was made prior to any of Gason’s 

protected activity. Gason cannot now use her EEOC discrimination complaint to overcome that 

initial relocation decision. Therefore, Gason’s second, fourth, and fifth forms of injunctive relief 

will be denied. 

 Accordingly, the only relief that this Court could grant Gason is an injunction prohibiting 

Dow Corning from forcing her to relocate to Belgium before June 2015. Whether that relief is in 

fact warranted is discussed below. 

C.

 

5

 At the hearing, Plaintiff’s counsel requested a preliminary injunction through October 2015, when her visa expired. 

Counsel explained that Dow Corning’s e-mails reveal that Dow Corning always wanted to tie Gason’s transfer date 

to the date her visa expires. Therefore, counsel continued, the preliminary injunction should extend until the 

expiration of Gason’s visa, not the June 2015 date that Dow Corning identified. This argument is foreclosed at this 

stage, however, given the facts provided in Gason’s verified complaint: “In September 2014, the Company told 

Gason that she would be transferred to a position in Belgium in late June 2015. The June 2015 transfer date 

coincides with the date the Company told Gason her L1 Visa would expire.” Compl. ¶ 26-27. 

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Gason claims that she will suffer an irreparable injury if she is required to return to 

Belgium in April. She claims that she has a “fundamental legal right to live and work in the 

United States that will be impaired if defendant is permitted to accelerate her transfer.” Reply 6. 

Furthermore, she continues, “[e]ven if she has to leave the country when her visa expires in 

October, the loss of her rights prior to this time are immeasurable and cannot be repaired.” Id. 

At the hearing, the Court requested counsel to identify any type of harm that Gason 

would incur from moving her transfer date to April 2015, given that she was notified of the date 

about two months earlier in January 2015 and knew that Dow Corning intended her to return to 

Belgium as early as September 2014; counsel did not do so. Counsel acknowledged that other 

forms of harm—such as taking a loss when attempting to sell her Michigan home—would be 

compensable through damages and do not warrant a preliminary injunction. 

Gason has not shown that she will suffer an irreparable harm if she is forced to relocate to 

Belgium in April rather than in June. Contrary to her assertion, she does not have a 

“fundamental legal right to live and work in the United States. Indeed, Gason cites no authority 

for the proposition. But courts have held that only United States citizens have “the right to live 

in the United States for as long as one sees fit.” Lopez v. Franklin, 427 F.Supp. 345, 349 (E.D. 

Mich. 1977); see also Oforji v. Ashcroft, 354 F.3d 609, 616 (7th Cir. 2003) (citizen-children 

“have the legal right to remain in the United States,” although non-citizen parent does not). As a 

Belgian citizen, Gason does not have a “fundamental right” to remain in the United States. 

Therefore, she will not suffer irreparable harm if she is forced to relocate for her job sixty days 

earlier than originally planned. 

D.

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Gason contends that a preliminary injunction prohibiting her transfer will not result in 

any harm to Dow Corning because she has already been performing her transfer-job functions 

since January 2015. In essence, she is already performing the job functions, but she would prefer 

to do them here in the United States rather than in Belgium. 

However, because she has not demonstrated a likelihood of success on the merits, and 

because she has not shown that she will suffer an irreparable harm, the balance of equities does 

not favor injunctive relief. 

E.

Lastly, Gason maintains that granting the preliminary injunction is in the public interest 

because it will preserve the status quo. But because Gason has not demonstrated a likelihood of 

success on the merits, the public interest is best served by denying the request for preliminary 

injunction. See, e.g., FieldTurf USA, Inc. v. Astroturf, LLC, 725 F. Supp. 2d 609, 618 (E.D. 

Mich. 2010). 

IV. 

 Accordingly, it is ORDERED that Plaintiff Lucia Gason’s Motion for Preliminary 

Injunction (ECF No. 6) is DENIED. 

s/Thomas L. Ludington 

 THOMAS L. LUDINGTON 

 United States District Judge 

Dated: March 26, 2015 

 

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 March 26, 2015. 

 s/Suzanne M. Gammon 

 SUZANNE M. GAMMON 

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