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STATE OF MICHIGAN
COURT OF APPEALS


ERNEST M. TIMKO, Plaintiff-Appellant, v OAKWOOD CUSTOM COATING, INC., d/b/a OAKWOOD TOOL & MOLD, and THE OAKWOOD GROUP, Defendants-Appellees.

FOR PUBLICATION January 2, 2001 9:00 a.m. No. 212927 Wayne Circuit Court LC No. 98-806774 CZ

Updated Copy March 16, 2001

Before: McDonald, P.J., and Gage and Talbot, JJ. GAGE, J. Plaintiff appeals as of right the trial court's grant of summary disposition for defendant.1 The trial court granted defendant summary disposition of plaintiff 's age discrimination claims pursuant to MCR 2.116(C)(7) (statute of limitations). We affirm. On August 26, 1996, plaintiff, at age seventy-one, began tool and die work for defendant. On August 28, 1996, plaintiff signed a three-paragraph portion of defendant's employment application labeled "Authorization and Understanding." Among other things, the understanding provided for plaintiff 's agreement that the parties' employment relationship was at will, and in bold print explained, in relevant part, as follows: I agree that any action or suit against the firm arising out of my employment or termination of employment, including, but not limited to, claims arising under State or Federal civil rights statutes, must be brought within 180

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days of the event giving rise to the claims or be forever barred. I waive any limitation periods to the contrary. Plaintiff 's term of employment lasted for approximately five and one-half months, until February 7, 1997, when defendant discharged plaintiff allegedly because plaintiff unsatisfactorily performed his job. On March 3, 1998, plaintiff sued defendant, alleging unlawful age discrimination under the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq. Defendant moved for summary disposition pursuant to MCR 2.116(C)(7), arguing that because plaintiff filed suit more than 180 days after his term of employment ended the 180-day period of limitation precluded plaintiff 's claim. Plaintiff responded that Herweyer v Clark Hwy Services, Inc, 455 Mich 14; 564 NW2d 857 (1997), stood for the proposition that a six-month period of limitation placed within an employment agreement was unreasonable and therefore unenforceable. The trial court concluded that the 180-day period of limitation satisfied the requirement under Michigan law that a shortened period of limitation must qualify as reasonable and granted defendant summary disposition because plaintiff filed suit beyond the 180-day period. Plaintiff moved for reconsideration on the bases that no mutuality of obligation supported defendant's attempted enforcement of the 180-day period contained within the employment application and that defendant's standard form employment application represented a contract of adhesion. Plaintiff also reiterated that Michigan law viewed as unreasonable a six-month period of limitation. The trial court found plaintiff bound by the terms of the employment application. The court also restated its finding that the 180-day period of limitation was reasonable and, consequently, determined that the employment application did not constitute an adhesion contract. Accordingly, the court denied plaintiff 's motion for reconsideration. -2-

Plaintiff on appeal challenges the trial court's decision to apply the 180-day period of limitation contained within the employment application. We review de novo a trial court's summary disposition ruling. Spiek v Dep't of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998). Defendant sought summary disposition based on MCR 2.116(C)(7), which provides that "[t]he claim is barred because of . . . statute of limitations." When reviewing a motion for summary disposition under MCR 2.116(C)(7), a court must accept as true a plaintiff 's well-pleaded factual allegations, affidavits, or other documentary evidence and construe them in the plaintiff 's favor. If no facts are in dispute and reasonable minds could not differ concerning the legal effect of those facts, whether a plaintiff 's claim is barred by the statute of limitations is a question for the court as a matter of law. [Jackson Co Hog Producers v Consumers Power Co, 234 Mich App 72, 77; 592 NW2d 112 (1999) (citation omitted).] Plaintiff first asserts that the 180-day period of limitation is unreasonable according to Herweyer, supra. In Herweyer, the plaintiff signed an employment contract with the defendant that described a six-month period of limitation for bringing employment-related claims against the defendant, and additionally provided that "'if any of the above commitments by me is ever found to be legally unenforceable as written, the particular agreement concerned shall be limited to allow its enforcement as far as legally possible.'" Herweyer, supra at 16 (emphasis added). The instant plaintiff reasons that the Supreme Court would not have considered the question whether the Herweyer parties' above highlighted savings provision applied had it not preliminarily determined that the six-month period there involved qualified as unreasonable. Plaintiff 's argument, however, plainly lacks merit. The Supreme Court "granted [Herweyer]'s application in order to determine whether the contract's saving provision can be read to require any claims to be brought within the minimum reasonable period." Id. at 18-19.2 The Court

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specifically enunciated that "we express no opinion regarding the reasonableness of any shortened period agreed to by the parties." Id. at 18.3 The Supreme Court in Herweyer restated the accepted principle that parties may contract for a period of limitation shorter than the applicable statute of limitation provided that the abbreviated period remains reasonable. The period of limitation "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. at 20, citing Camelot Excavating Co, Inc v St Paul Fire & Marine Ins Co, 410 Mich 118, 127; 301 NW2d 275 (1981). To this point, no published opinion by this Court or the Supreme Court has specifically addressed the reasonableness of a shortened, 180-day period of limitation in the context of an employment agreement. Plaintiff does not address how the instant, shortened period of limitation violates any of the three prescribed considerations. Applying Michigan law, at least two federal courts have found that a six-month period of limitation contained within an employment agreement qualified as reasonable. In Myers v Western-Southern Life Ins Co, 849 F2d 259, 260 (CA 6, 1988), the plaintiff signed an employment contract agreeing "'[n]ot to commence any action or suit relating to your employment . . . more than six months after the date of termination of such employment, and to waive any statute of limitation to the contrary.'" More than sixteen months after the plaintiff retired, he filed a constructive discharge lawsuit against the defendant, alleging age and handicap discrimination in violation of the Michigan Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq., and the Michigan Handicappers' Civil Rights Act,4 MCL 37.1101 et seq.; MSA 3.550(101) et seq. The United States District Court for the Eastern District of

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Michigan (Feikens, J.) granted the defendant's motion for summary judgment based on the sixmonth period of limitation. Myers, supra at 260. The Sixth Circuit Court of Appeals on appeal addressed the reasonableness of the abbreviated period of limitation. Judge Keith, writing for the court, restated the Michigan Supreme Court's reasonableness requirements, see Camelot, supra, then concluded as follows: There is nothing inherently unreasonable about a six-month limitations period. For example, six months is the time limit within which claims must be brought for breach of the duty of fair representation under the Labor Management Relations Act. 29 USC

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