Thurman v. DaimlerChrysler Inc ( 2004 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 04a0114n.06
Filed: November 19, 2004
No. 02-2474
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
CONNIE THURMAN; JOHN THURMAN,
Plaintiffs-Appellants, ON APPEAL FROM THE
UNITED STATES DISTRICT
v. COURT FOR THE EASTERN
DISTRICT OF MICHIGAN
DAIMLERCHRYSLER, INC.,
JAMES STANFORD PITTMAN,
jointly and severally,
Defendants-Appellees.
______________________________________/
BEFORE: MARTIN, and ROGERS, Circuit Judges; BELL, District Judge.*
BELL, District Judge. The issue before the Court is whether an employee
effectively waived the statutory limitations period for a civil lawsuit by signing an
employment application that provided for an abbreviated period of limitations. This action
arises from the employment relationship between Plaintiff-Appellant Connie Thurman and
Defendant-Appellee DaimlerChrysler, Inc. (“DaimlerChrysler”). Connie and John Thurman
(collectively “the Thurmans”) assert claims of sex discrimination under Michigan’s Elliott-
Larsen Civil Rights Act, MICH. COMP. LAWS § 37.2101, et seq., race discrimination under
*
The Honorable Robert Holmes Bell, Chief United States District Judge for the
Western District of Michigan, sitting by designation.
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42 U.S.C. § 1981, and negligent hiring/retention, negligent supervision, assault and battery,
negligence and gross negligence, as well as loss of consortium. The claims arise from two
separate incidents in which Defendant James Stanford Pittman (“Pittman”) sexually harassed
Ms. Thurman while in the workplace. The Thurmans appeal the district court’s order
granting DaimlerChrysler’s motion for summary judgment. The Thurmans contend that the
district court erred in holding that their claims were time barred by the abbreviated statute
of limitations contained in the DaimlerChrysler employment application.
For the reasons set forth below, we affirm the district court’s order granting
DaimlerChrysler’s motion for summary judgment on all claims against DaimlerChrysler and
we remand the remaining claims against Defendant Pittman to the district court with
instructions to remand the case to the Circuit Court for the County of Oakland, State of
Michigan.
I.
Ms. Thurman is an employee of DaimlerChrysler and a former co-worker of Pittman.
Prior to beginning her employment with DaimlerChrysler, Ms. Thurman completed an
employment application for DaimlerChrysler (then Chrysler Corporation). Among other
provisions, the application contained a clause waiving any statute of limitation and agreeing
to an abbreviated limitations period in which to file suit against the employer. Specifically,
the clause stated:
(8) I agree that any claim or lawsuit relating to my service with Chrysler
Corporation or any of its subsidiaries must be filed no more than six (6)
months after the date of the employment action that is the subject of the
claim or lawsuit. I waive any statute of limitations to the contrary.
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(J.A. 212-13). This clause was printed in the same size font as all other printed portions of
the application. In addition, the clause was preceded by the statement, “READ
CAREFULLY BEFORE SIGNING,” in bold and capitalized letters. (J.A. 212). The
application also contained a clause stating: “This application will be considered active for
twelve (12) months from the date filed. If you are hired, it becomes part of your official
employment record.” Id. Ms. Thurman signed the application, acknowledging that she read
and understood the application. Id. Upon her hiring, Ms. Thurman was covered by the
collective bargaining agreement between DaimlerChrysler and UAW Local 1264.
Ms. Thurman began working for DaimlerChrysler in November 1994. On
September 9, 1999, Ms. Thurman and Pittman were engaged in a conversation in the plant
cafeteria. When Ms. Thurman excused herself to attend a meeting, she bent over to pat
Pittman’s shoulder. Pittman misunderstood the gesture and grabbed her left breast. After
conducting an investigation of the incident, the DaimlerChrysler Labor Relations Staff
concluded that there was insufficient evidence to punish Pittman. On September 29, 1999,
Plaintiff filed a statement of concern with the Michigan Department of Civil Rights claiming
harassment owing to the conduct of Pittman on September 9, 1999.
On October 2, 1999, Ms. Thurman was in the cafeteria eating lunch with her co-
workers when Pittman entered the room. As he was leaving the cafeteria, Pittman walked
by Ms. Thurman and grabbed his crotch, shaking his genitals at her. Ms. Thurman reported
this incident to her superiors. DaimlerChrysler did take action against Pittman after the
October 2, 1999, incident. Pittman was given a 10-day suspension for violating the
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Thurman v. DaimlerChrysler Inc. & Pittman
DaimlerChrysler Standards of Conduct. In response to the two harassment incidents,
Ms. Thurman filed a criminal complaint with the Sterling Heights Police Department on
October 19, 1999. Pittman pled guilty to fourth degree criminal sexual conduct and
aggravated assault. (J.A. 482).
After being transferred to another shift in January 2000, Ms. Thurman was given a
leave of absence from work on February 26, 2000, and has not returned to active duty with
DaimlerChrysler.
On June 1, 2000, the Thurmans filed a lawsuit in federal district court, naming
DaimlerChrysler and Pittman as defendants, alleging violations of the Michigan Elliot Larsen
Civil Rights Act, Title VII, 42 U.S.C. § 1981, and various state law tort claims. On
December 15, 2000, the suit was dismissed by the district court due to the repeated failure
of the Thurmans' counsel to appear and participate in court ordered conferences. (J.A. 531-
53). While the district court permitted reinstatement of the action for good cause within 30
days, the Thurmans did not move to reinstate the action or appeal the dismissal. Instead, the
Thurmans filed a second lawsuit in August 2001, the present suit before the Court, in the
Oakland County Circuit Court alleging the same claims as the previous suit. The suit was
removed to the United States District Court, Eastern District of Michigan, based on federal
question and supplemental jurisdiction. Thereafter, the court below granted summary
judgment in favor of DaimlerChrysler and Pittman and dismissed the suit as untimely filed
pursuant to the abbreviated limitations agreement in the DaimlerChrysler application.
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Thurman v. DaimlerChrysler Inc. & Pittman
II.
The Court reviews de novo a district court’s grant of a motion for summary judgment.
Lewis v. Philip Morris, Inc., 355 F.3d 515, 523 (6th Cir. 2004) (citing Williams v. General
Motors Corp., 187 F.3d 553, 560 (6th Cir. 1999)).
The district court below held that the abbreviated six-month statute of limitations in
the DaimlerChrysler employment application was reasonable and barred the Thurmans’ suit
against DaimlerChrysler. (J.A. 517-18). In addition, the district court held that the tort
claims against Pittman were also time barred. (J.A. 520-21).
The Thurmans first asserts on appeal that the district court erred in holding that their
claims were time barred by the abbreviated statute of limitations because by its terms the
application expired before Ms. Thurman was hired by DaimlerChrysler. The Thurmans point
to the application language stating: “This application will be considered active for twelve
(12) months from the date filed. If you are hired, it becomes part of your official
employment record.” (J.A. 212). The Thurmans contend that the six-month statute of
limitations could not apply to this case because the application expired in October 1994
(twelve months after it was signed), and Ms. Thurman was not hired by DaimlerChrysler
until November 1994.
We are unpersuaded by the Thurmans' argument that the employment application was
expired and therefore the six-month statute of limitations period is inapplicable. It is
uncontested that Ms. Thurman was hired pursuant to the employment application that she
filled out. Indeed, because Ms. Thurman was hired based upon the information contained
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Thurman v. DaimlerChrysler Inc. & Pittman
in the application, it became part of her employment record. (J.A. 212) (“If you are hired,
it becomes part of your official employment record.”). Moreover, Michigan courts have held
that terms in an employment application constitute part of an employee’s contract of
employment. See e.g., Timko v. Oakwood Custom Coating, Inc., 625 N.W.2d 101, 106
(Mich. Ct. App. 2001) (holding that terms of an employment application are part of an
employment contract); Butzer v. Camelot Hall Convalescent Centre, Inc., 454 N.W.2d 122,
124 (Mich. Ct. App. 1989) (concluding that an at will termination provision in an
employment application was part of an employment contract). Given the fact that
DaimlerChrysler hired Ms. Thurman based upon the application she filled out and that the
application became part of her employment record, it cannot be argued that the application
expired prior to her hiring.
The Thurmans next argue that the provisions of the employment application were
superseded by the collective bargaining agreement entered into between DaimlerChrysler and
UAW Local 1264. The Thurmans contend that an employee’s waiver of a statute of
limitations is a mandatory subject of collective bargaining that must be included in the
collective bargaining agreement in order to protect the employer. Further, the Thurmans
argue that because the collective bargaining agreement is the only agreement governing the
terms and conditions of the relationship between DaimlerChrysler and UAW, and it did not
include a six-month statute of limitation for lawsuits arising out of employment, it nullifies
the employment application’s abbreviated limitations period.
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In response, DaimlerChrysler contends that there is no express restriction in the
collective bargaining agreement on their authority to contract directly with their employees
concerning limitations periods. Further, DaimlerChrysler asserts that the collective
bargaining agreement reserves the right of DaimlerChrysler to manage and direct its affairs
and employees unless specifically limited by the collective bargaining agreement. Appellee
DaimlerChrysler’s Br. at 27.
We conclude that the collective bargaining agreement does not supersede the
employment application's six-month statute of limitations. “[I]ndividual employment
contracts are not inevitably superseded by any subsequent collective agreement covering an
individual employee . . . .” Caterpillar Inc. v. Williams, 482 U.S. 386, 396 (1987). Indeed,
the collective bargaining agreement at issue expressly reserves the right of DaimlerChrysler
to manage its employees and direct its affairs, “except as limited by the terms of th[e]
Agreement . . . .” Appellee DaimlerChrysler’s Br. at 27 (quoting Agreement between
DaimlerChrysler Corporation and the UAW, dated September 27, 1999). As
DaimlerChrysler noted, there is no provision in the collective bargaining agreement limiting
the right of the employer to enter into abbreviated limitations periods with individual
employees. We also note that the Thurmans have not pointed to any authority holding that
statutes of limitation are a mandatory subject of bargaining. Federal law mandates that any
collective bargaining agreement deal with “mandatory subjects” of bargaining such as hourly
pay rates, work shifts, pensions, grievance procedures, seniority, and compulsory retirement
age. 29 U.S.C. § 158(d); See also Detroit Police Officers Ass’n v. Detroit, 214 N.W.2d 803,
No. 02-2474 8
Thurman v. DaimlerChrysler Inc. & Pittman
808-09 (Mich. 1974) (distinguishing between “mandatory subjects” and “permissive
subjects” of bargaining). The collective bargaining agreement in this case apparently
contains a clause stating, “[i]t is the intention of the parties that this agreement during its term
shall cover all arrangements between the parties concerning wage, hours, and conditions of
employment.” Appellants' Br. at 18-19.1 Nothing in the quoted language bars the employer
from including a waiver of statute of limitations in an employment contract. Therefore, the
six-month statute of limitations contained in the employment application is not superseded
by the collective bargaining agreement.
Upon concluding that the employment application was not expired prior to
Ms. Thurman’s hiring nor superseded by the collective bargaining agreement, we turn to
whether the six-month statute of limitations clause is enforceable. The Thurmans contend
that the application is unenforceable because it is an unconscionable contract of adhesion.
Under Michigan law, courts will not invalidate contracts as adhesion contracts where the
challenged provision is reasonable. Rembert v. Ryan’s Family Steak Houses, Inc., 596
N.W.2d 208, 226 (Mich. Ct. App. 1999) (citing Rehmann, Robson & Co. v. McMahan, 466
N.W.2d 325, 329 (Mich. Ct. App. 1991); Ryoti v. Paine, Webber, Jackson & Curtis, Inc., 371
N.W.2d 454, 455-56 (Mich. Ct. App. 1985)). Previously, this Court determined that there
is nothing inherently unreasonable about a six-month limitations period contained in an
employment agreement. Myers v. Western-Southern Life Ins. Co., 849 F.2d 259, 262 (6th
1
The quoted language is apparently contained in an exhibit that was attached to
Plaintiffs-Appellants' Brief in Response to DaimlerChrysler’s Motion for Summary Judgment
below. On appeal, the exhibit may have been erroneously left out of the joint appendix.
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Thurman v. DaimlerChrysler Inc. & Pittman
Cir. 1988). Moreover, Michigan courts have consistently held that contracting parties may
agree to an abbreviated statute of limitations so long as it is reasonable. See Camelot
Excavating Co., Inc. v. St. Paul Fire & Marine Ins. Co., 301 N.W.2d 275, 276 (Mich. 1981);
Timko, 625 N.W.2d at 106. In Timko, the Michigan Court of Appeals held that a six-month
statute of limitations clause in an employment application was not inherently unreasonable.
Timko, 625 N.W.2d at 106. The court held that an abbreviated limitations period within an
application for employment “is reasonable if (1) the claimant has sufficient opportunity to
investigate and file an action; (2) the time is not so short as to work a practical abrogation of
the right of action; and (3) the action is not barred before the loss or damage can be
ascertained.” Id. (citing Camelot Excavating Co., Inc., 301 N.W.2d at 276.). Applying the
three factors to the six-month limitations period at issue in Timko, the court held that the six-
month limitations period was reasonable. Id.
The Thurmans assert that Timko is factually distinguishable from the present case and
should not apply. The Thurmans contend that Timko did not involve a unionized employee
subject to a collective bargaining agreement, the time period between the date the application
was signed and the date the cause of action arose was much greater, and the abbreviated
limitations clause in the Timko case was in bold print.
As we discussed above, the fact that Ms. Thurman is subject to the collective
bargaining agreement does not nullify the provisions of her employment application.
Further, the Thurmans overstate the importance of the time elapsed between application for
employment and accrual of the cause of action. Timko turned on the fact that the six-month
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period of limitations satisfied the three considerations used in evaluating the reasonableness
of an abbreviated limitations period, not the time elapsed between the date of application and
the date the cause of action arose. Timko, 625 N.W.2d at 106.
Finally, the Thurmans correctly point out that the abbreviated limitations clause in
Timko was in bold print and the clause in the DaimlerChrysler application was in plain type.
This, however, does not render Timko inapplicable. The six-month statute of limitation
clause is located within a section with the heading “READ CAREFULLY BEFORE
SIGNING.” (J.A. 212). Further, the clause is located directly above Ms. Thurman’s
signature acknowledging that she read and understood the document. Id. Ms. Thurman also
testified that she read the application and did not have any concern or disagreement with the
provisions, including the abbreviated limitation clause. (J.A. 86-87). We are satisfied that
the differences between the clause in Timko and the DaimlerChrysler clause are not material.
Consequently, we conclude that Timko is applicable to the present case.
Turning to whether the abbreviated limitations clause in this case is reasonable, the
Thurmans contend that the clause is unreasonable because there was not a sufficient
opportunity to investigate her claims and determine the extent of her damages. We find this
argument unavailing given that the record is replete with evidence that Ms. Thurman had
ample time to investigate her claim and determine her damages. The best example from the
record is that the Thurmans filed the first lawsuit encompassing the underlying events within
the abbreviated limitations period. (J.A. 549). Surely, a sufficient investigation and
determination of damages had been conducted prior to filing the first lawsuit. Moreover,
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Ms. Thurman was referred to medical and psychological treatment one week after the first
incident with Mr. Pittman. (J.A. 158). Further, Ms. Thurman filed a complaint with the
Michigan Department of Civil Rights on September 29, 1999 and filed a criminal complaint
against Mr. Pittman on October 20, 1999. (J.A. 305-06). These facts demonstrate that she
had an ample opportunity to investigate her claims and determine her losses. Therefore, the
six-month limitations period gave the Thurmans a sufficient opportunity to investigate and
file an action, as well as ascertain the damages suffered. Accordingly, we conclude that the
abbreviated limitations period contained in the employment application is reasonable. Myers,
849 F.2d at 262; Timko, 625 N.W.2d at 105-06.
Finally, the Thurmans contend that the waiver of the statutory period of limitation is
void because Ms. Thurman did not sign the waiver knowingly, intelligently, and voluntarily.
Waivers in civil rights cases must be carefully scrutinized for voluntariness. See Myers, 849
F.2d at 262 (citing Cox v. Allied Chem. Corp., 538 F.2d 1094, 1098 (6th Cir. 1976)). Even
under a heightened level of scrutiny, we conclude that the waiver in this case was knowing
and voluntary. Ms. Thurman’s own deposition testimony refutes her argument.
Ms. Thurman testified that she read and understood the application prior to signing it and did
not have any concern or disagreement with any of the provisions, including the abbreviated
limitations period. (J.A. 112-14). Moreover, the contractual language is clear and
unambiguous. (J.A. 212). Under the circumstances of this case, we cannot say that the
waiver of the statutory period was unknowing and involuntary.
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In light of our holding that the abbreviated limitations period contained in the
DaimlerChrysler employment application is reasonable, all of Ms. Thurman’s claims against
DaimlerChrysler are time barred by the six-month limitations period. Assuming that the
cause of action accrued at the latest possible date, February 26, 2000, when Ms. Thurman last
worked at the Sterling Stamping Plant, she would have had until August 26, 2000, to
commence a lawsuit against DaimlerChrysler. This cause of action was filed on August 13,
2001. (J.A. 1). Even allowing for the tolling of the statute of limitations during the pendency
of the first lawsuit between the parties, this lawsuit was filed well after the bar date specified
in the employment application. Consequently, the district court correctly granted
DaimlerChrysler’s motion for summary judgment. We affirm the decision below granting
summary judgment on all claims against DaimlerChrysler.
Mr. Thurman’s loss of consortium claim is also time barred by the employment
application's six-month statute of limitation. Mr. Thurman’s claim is derivative and thus
“stands or falls on the primary claims in the complaint.” Cole v. Knoll, 984 F. Supp. 1117,
1136 (W.D. Mich. 1997) (quoting Long v. Chelsea Cmty. Hosp., 557 N.W.2d 157, 162-63
(Mich. Ct. App. 1996)). Since Ms. Thurman’s claims are barred by the abbreviated
limitations period, Mr. Thurman’s claims are barred as well.
III.
We now turn to the Thurmans' remaining claims against Pittman. The district court
below dismissed all claims asserted against Pittman because the district court viewed them
as barred by the state statutes of limitation. (J.A. 520-21). The Thurmans asserted claims
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of intentional infliction of emotional distress, assault, and negligence against Pittman. (J.A.
12-14). The period of limitations applicable to claims of intentional infliction of emotional
distress and negligence is three years. See MICH. COMP. LAWS § 600.5805(9) (2004);
Lemmerman v. Fealk, 534 N.W.2d 695, 697 (Mich. 1995) (“claims for negligence and
intentional infliction of emotional distress must be brought within three years . . . to avoid
the limitation bar.”). The statute of limitation for an action alleging assault or battery is two
years. MICH. COMP. LAWS § 600.5805(2) (2004). The district court was informed that the
limitations period for assault and intentional infliction of emotional distress was one year,
leading the court to conclude that the causes of action against Pittman were time barred.
(J.A. at 519-521). The district court erroneously concluded that the claims against Pittman
were barred by the statutes of limitation.
The remaining claims against Pittman, however, encompass state law tort claims
between citizens of the same state. The district court therefore did not have original subject
matter jurisdiction over them. Cmty. Health Plan of Ohio v. Mosser, 347 F.3d 619, 622 (6th
Cir. 2003) (“existence of subject matter jurisdiction, moreover, is an issue that may be raised
any time, by any party or even sua sponte by the court itself”) (quoting Ford v. Hamilton
Inv., Inc., 29 F.3d 255, 257 (6th Cir. 1994)). The district court asserted supplemental
jurisdiction over the claims against Pittman pursuant to 28 U.S.C. § 1367. We have held
previously that when all federal claims have been dismissed before trial, the best course is
to remand the state law claims to the state court from which the case was removed. Musson
Theatrical, Inc. v. Fed. Exp. Corp., 89 F.3d 1244, 1254-55 (6th Cir. 1996) (citing Carnegie-
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Thurman v. DaimlerChrysler Inc. & Pittman
Mellon Univ. v. Cohill, 484 U.S. 343, 350 n. 7 (1988)); see also 28 U.S.C. § 1367(c)(3)
(district courts may decline to exercise supplemental jurisdiction if all claims over which it
has original jurisdiction have been dismissed). Accordingly, the remaining claims against
Pittman are remanded to the district court with instructions to enter an order remanding the
case to the Circuit Court for the County of Oakland, State of Michigan.
IV.
For the foregoing reasons, we AFFIRM the district court’s order granting
DaimlerChrysler’s motion for summary judgment on all claims against DaimlerChrysler and
REMAND the remaining claims against James Stanford Pittman to the district court with
instructions to remand the claims to the Circuit Court for the County of Oakland, State of
Michigan.