Sherman v. Optical Imaging Systems, Inc.

• Citation: 843 F. Supp. 1168
• Decision Date: 15 February 1994
• Docket Number: No. 93-71649.,93-71649.
• Parties: Charles SHERMAN, and Gail Ann Sherman, his wife, Plaintiffs, v. OPTICAL IMAGING SYSTEMS, INC., (formerly Ovonic Imaging Systems, Inc.), and Energy Conversion Devices, Inc., Defendants.
• Court: U.S. District Court — Western District of Michigan

843 F. Supp. 1168

Charles SHERMAN, and Gail Ann Sherman, his wife, Plaintiffs, v. OPTICAL IMAGING SYSTEMS, INC., (formerly Ovonic Imaging Systems, Inc.), and Energy Conversion Devices, Inc., Defendants.

No. 93-71649.

United States District Court, E.D. Michigan, S.D.

February 15, 1994.

COPYRIGHT MATERIAL OMITTED

John M. Callahan, Southfield, MI, for plaintiffs.

Gregory V. Murray, Detroit, MI, for defendants.

OPINION AND ORDER

ROSEN, District Judge.

I. INTRODUCTION

This case involves the alleged constructive discharge of Plaintiff Charles Sherman ("Sherman") from Defendant Optical Imaging Systems ("OIS") in October, 1992. Plaintiffs filed a six-count complaint against OIS on March 19, 1993. Count I alleges a violation of the Michigan Handicappers' Civil Rights Act ("MHCRA").¹ Count II alleges a violation of the federal Americans with Disabilities Act ("ADA").² Count III alleges a negligence cause of action. Count IV alleges a claim for wrongful discharge. Count V alleges a violation of the federal Age Discrimination in Employment Act ("ADEA").³ Count VI alleges a claim for constructive termination.⁴ Lastly, Plaintiff Gail Ann Sherman seeks damages for a loss of consortium as a result of Sherman's alleged discharge.

This case was timely removed to federal court on April 20, 1993. On August 10, 1993, the parties stipulated to the dismissal, with prejudice, of Plaintiffs' claims against Defendant Energy Conversion Devices. On November 30, 1993, Defendant OIS filed a motion for summary judgment on all Plaintiffs' counts. Plaintiffs responded on January 18, 1994, and OIS replied on January 28. Having reviewed the record and the parties' briefs, and having heard oral argument on February 3, 1994, the Court is now prepared to rule on OIS' motion. This Memorandum Opinion and Order sets forth that ruling.

II. FACTUAL BACKGROUND

OIS is a Delaware corporation with its principal place of business in Troy, Michigan. OIS currently develops and manufactures flat panel liquid crystal displays. These displays are used by the Department of Defense and the Federal Aviation Administration for such things as digital maps and forward-looking infrared radar.

On January 30, 1987, OIS hired Sherman as an industrial designer. At the time of his hiring, Sherman informed OIS that he was diagnosed with dyslexia.

Initially, Sherman was working on commercial scanners. However, as OIS switched production to the flat panel liquid crystal displays for government clients, its in-house demands for industrial designers declined. Rather than terminate Sherman or offer him a job at a lower salary, OIS transferred him to a mechanical engineer position.

On April 16, 1992, Sherman and his immediate supervisor, Tim Ewald, met to discuss Sherman's job responsibilities and goals for the period of March 20-June 30, 1992. A memorandum of that meeting signed by both Sherman and Ewald stated that Sherman's general responsibilities were "to design all elements of OIS backlights including coordination of changes in backlight properties with other OIS departments." OIS' Brief, Exhibit D. More specifically, Sherman was placed in charge of five projects with various deadlines set for dates on or before June 30, 1992. They consisted of the following: (1) reducing the costs of backlights; (2) working on SFIM modules; (3) working on lamp heater designs; (4) making progress on a molded image splitting diffuser; and (5) building various demonstration items. Id. Sherman and Ewald set the deadlines in the memorandum based on Sherman's estimates of the time it would take to complete each project. Sherman's Deposition, pp. 102-03 (found in OIS' Brief, Exhibit A).

On June 15, 1992, Ewald met with Sherman to check his progress on the five projects. Ewald filled out a written evaluation, signed by both him and Sherman, which stated that Sherman was making "satisfactory" progress on Project (5), that his work on Project (2) "needed improvement," and that his work on the three other projects was "unacceptable." At least the first four projects were listed as of "important" significance to the company. The fifth project — the only one that Sherman was completing satisfactorily — did not receive a ranking on OIS' three-step significance level. See OIS' Brief, Exhibit E (evaluation sheet which, inter alia, ranks projects by the grades "essential," "important," or "routine").

In a commentary written at the bottom of Sherman's June 15, 1992 evaluation, Ewald wrote the following: "Chuck has been distracted from his primary goals. Chuck needs to pay particular attention to accurate estimating and completion of tasks. An interim review is scheduled for 9/15/92." Id. Finally, the evaluation set a goal for Sherman to "complete all tasks" by the September 15 review. Id.

Ewald next reviewed Sherman's work on October 20, 1992. In a memorandum made on that same date, Ewald wrote:

The following summarizes the interim performance review held today with Chuck Sherman.

I began by explaining the type of business that the company has been pursuing has changed since Chuck was hired. I explained that we are no longer developing commercial scanners and other products that require industrial design and graphic artist services. I then told Chuck that I thought very highly of his skills as an industrial designer and graphic artist, but that his performance as a backlight mechanical engineer has not shown enough progress since our last review in June. I reminded him that the lamination problems Project (4) above and the lamp heater application problem Project (3) above are still in the same state as the day that I joined the company in February 1992 despite many man months devoted to studying the problems.

Chuck responded by acknowledging that the problems still exist and asked whether I was aware of all of the problems with backlight designs. I responded that I was aware of many problems, but that I could not be sure I knew of them all.

At this point, Chuck wanted to discuss whether or not OIS is pursuing the backlight business. We talked about the fact that many of our customers see the possibility of OIS providing a backlight as a threat. I reiterated that I felt that Chuck was incapable of solving the backlight problems that we face in a time frame that we could afford. I suggested that maybe his inability to solve these problems over the last 8 months may be related to his lack of a college education or to the dyslexia that he often points out. I also asked Chuck if there was anything that OIS could to do accommodate his dyslexia.

Chuck acknowledged that he was not able to perform thermal analysis on the backlights, and that there was nothing that the company could provide to accommodate his dyslexia. We both agreed that backlight design provides many technical challenges. Chuck took the position again that there was nothing he could do to speed up his "invention" process. I re-emphasized that the backlight problems we are facing would be better solved by a formal analytic engineering approach, rather than waiting another 8 months for an "invention" to happen.

I asked Chuck if he had any suggestions on how I could help him get results. He suggested that I have not provided the same level of attention and coaching to him as I have to the other three mechanical engineers. I assured him that that was not the case and reminded him of the meetings that I have had with him on the subject of backlight problems. He claimed he was not able to schedule lab time to conform to his ideas.

I reminded him that when he brought this to my attention at our last review that I instructed him to bring this to my attention immediately when it happened, and I would assist in resolving the conflict. The first and only time that Chuck has brought this to my attention, other than during a poor review, was last Friday. Chuck also accused OIS of not communicating to him all of the relevant information to backlight designs. I explained that I regarded Chuck's communication skills a contributing factor to his lack of results on the backlight projects.

In closing, I re-emphasized that I felt Chuck was an excellent performer when it came to industrial design and graphic arts, but that I felt he was not capable of dealing with the complexities of backlight designs in a time frame OIS could afford. I suggested that Chuck should consider looking for work as an industrial designer at another company and that OIS would consider a severance offer that would allow him time to look for another job. Chuck is going to consider everything we talked about and meet with me later this week.

OIS' Brief, Exhibit F.

Sherman signed this report on October 21, 1992, but wrote that he "did not necessarily agree." Id. According to Sherman, the reason he was unable to complete the projects Ewald gave him was because he was also receiving assignments from other supervisors at OIS. Sherman Deposition, p. 89. However, Sherman admitted that "these were small jobs." Id. Moreover, Ewald explained how he permitted his employees to perform extra-department work so long as they continued to complete projects he assigned:

Q. Did you ever discuss with any other department heads verbally or in writing or posting that they shouldn't come in and ask your people to do it or that if they wanted something done, they should come right to you and not to any individual?

A. Yes.

Q. Were those instructions followed or did people still go to individuals, primarily Chuck?

A. Some department managers followed it more regularly than others.

Q. So even though you had requested that they not go to people other than you, still some department managers or their employees still went to Chuck?

A. Yes. I didn't want it to become a bottleneck for work in the company. As a manager, I instructed our people that if they wanted to approach anyone in my department, they were welcome to do so and let that individual decide whether they had the time to meet the

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