NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 14a0382n.06

No. 13-5747

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Rebecca Shupe,

Plaintiff-Appellant,

v.

Asplundh Tree Expert Company,

Defendant-Appellee.

)

)

)

)

)

)

)

)

)

ON APPEAL FROM THE UNITED 

STATES DISTRICT COURT FOR 

THE EASTERN DISTRICT OF 

KENTUCKY

OPINION

BEFORE: CLAY and DONALD, Circuit Judges; MAYS, District Judge.*

Samuel H. Mays, District Judge. Plaintiff-Appellant 

Rebecca Shupe (“Shupe”) appeals the district court’s order

granting summary judgment to her former employer, DefendantAppellee Asplundh Tree Expert Company (“Asplundh”) in her suit 

for sexual harassment, gender discrimination, and wrongful 

termination. For the reasons below, we AFFIRM the judgment of 

the district court. 

I.

Asplundh hired Shupe to work as a Permission Taker/PrePlanner in its Lexington, Kentucky offices in August 2008. As a 

 

*The Honorable Samuel H. Mays, Jr., United States District Judge for the 

Western District of Tennessee, sitting by designation. 
No. 13-5747

Rebecca Shupe v. Asplundh Tree Expert Company

- 2 -

condition to her at-will employment, Shupe was a required to 

sign several forms, including a “Limitation on Time to File 

Claims or Lawsuits” (the “Waiver”). Shupe signed and dated the 

Waiver on August 15, 2008. 

The single-page Waiver provides that:

I agree that any claim, administrative claim or 

lawsuit relating to my service with [Asplundh] 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, except as may be 

provided otherwise in a collective bargaining 

agreement currently in effect. I waive any statute of 

limitations to the contrary. 

I have read and understand the contents of this 

limitation and am fully able and competent to complete 

it. 

The words “IMPORTANT NOTICE” in larger font appear at the 

top and bottom of the Waiver. The words “LIMITATION ON TIME TO 

FILE CLAIMS OR LAWSUITS” and “READ CAREFULLY BEFORE SIGNING”

also appear at the top of the Waiver. The words “PLEASE READ” 

in larger font appear at the bottom of the Waiver.

Shupe continued to work for Asplundh until she was 

terminated in August 2011. Shupe claims that she was wrongfully 

terminated in retaliation for complaining of sexual harassment 

and gender discrimination by her supervisor at Asplundh, who was 

also her ex-husband.

Shupe filed a complaint against Asplundh in the Circuit 

Court of Fayette County, Kentucky, on August 10, 2012. The 
No. 13-5747

Rebecca Shupe v. Asplundh Tree Expert Company

- 3 -

complaint was filed more than six months after she had been 

terminated. Shupe alleged that Asplundh had violated the 

Kentucky Civil Rights Act, K.R.S. §§ 344.010, et seq., when she 

was (1) subjected to sexual harassment by her supervisor, her 

former husband; (2) terminated based on her gender and age; and 

(3) terminated in retaliation for complaining about her former 

husband’s actions. 

When Asplundh removed the action to the United States 

District Court for the Eastern District of Kentucky, Shupe filed 

a motion to remand the case to the state court on the basis that 

her claims did not meet the minimum amount in controversy for 

diversity jurisdiction. The district court disagreed and denied 

her motion to remand. 

Asplundh then filed a motion for summary judgment, arguing 

that Shupe’s complaint, filed almost a year after her 

termination, was barred by the six-month limitations period in 

the Waiver she had signed as a condition of her employment.

The district court granted the motion and Shupe filed this 

timely appeal. On appeal, Shupe argues (1) that the district 

court lacked subject matter jurisdiction because her claims did 

not meet the minimum amount in controversy requirement for 

diversity jurisdiction, and (2) that her waiver concerning the 

six-month limitations period was invalid and unenforceable.
No. 13-5747

Rebecca Shupe v. Asplundh Tree Expert Company

- 4 -

II.

Under 28 U.S.C. § 1291, this Court has “jurisdiction of 

appeals from all final decisions of the district courts of the 

United States.” Because the district court’s grant of summary 

judgment for Asplundh disposed of all issues relevant to this 

appeal, this Court has jurisdiction.

A. Diversity Jurisdiction and the Minimum

Amount-In-Controversy Requirement

The denial of a motion to remand for lack of subject matter 

jurisdiction is reviewed de novo. Music v. Arrowood Indem. Co., 

632 F.3d 284, 286 (6th Cir. 2011) (internal citation omitted). 

“If removal of a civil action is sought on the basis of the 

jurisdiction conferred by [28 U.S.C. § 1332(a)], the sum 

demanded in good faith in the initial pleading shall be deemed 

to be the amount in controversy . . . .” 28 U.S.C. § 

1446(c)(2). A court must conduct a “fair reading” of the

allegations in the complaint to determine the amount in 

controversy. Hayes v. Equitable Energy Res. Co., 266 F.3d 560, 

573 (6th Cir. 2001). 

“[T]he notice of removal may assert the amount in 

controversy if the initial pleading seeks . . . (ii) a money 

judgment, but the State practice either does not permit demand 

for a specific sum or permits recovery of damages in excess of 

the amount demanded . . . .” 28 U.S.C. § 1446(c)(2)(A)(ii). 
No. 13-5747

Rebecca Shupe v. Asplundh Tree Expert Company

- 5 -

Kentucky has such a practice. Kentucky Rule of Civil Procedure 

8.01(2) states that, “In any action for unliquidated damages the 

prayer for damages in any pleading shall not recite any sum as 

alleged damages other than an allegation that damages are in 

excess of any minimum dollar amount necessary to establish the 

jurisdiction of the court . . . .”

A removal action is only proper based on the amount in 

controversy asserted in the removal notice “if the district 

court finds, by the preponderance of the evidence, that the 

amount in controversy exceeds the amount specified in [28 U.S.C. 

§ 1332(a)].” 28 U.S.C. § 1446(c)(2)(B). This Court has held 

that federal jurisdiction in a diversity case is determined at 

the time of removal. Ahearn v. Charter Township of Bloomfield, 

100 F.3d 451, 453 (6th Cir. 1996) (internal citations omitted). 

“The party seeking removal bears the burden of demonstrating 

that the district court has original jurisdiction.” Eastman v. 

Marine Mech. Corp., 438 F.3d 544, 549 (6th Cir. 2006) (internal 

citations omitted). “The party requesting removal must set 

forth, in the notice of removal, specific facts supporting the 

assertion that the amount in controversy exceeds the amount 

required by statute.” Nat’l Nail Corp. v. Moore, 139 F.Supp.2d 

848, 850 (W.D. Mich. 2001) (citing Laughlin v. Kmart Corp., 

50 F.3d 871, 873 (10th Cir. 1995)). “[B]ecause lack of 

jurisdiction would make any decree in the case void and the 
No. 13-5747

Rebecca Shupe v. Asplundh Tree Expert Company

- 6 -

continuation of litigation in federal court futile, the removal 

statute should be strictly construed and all doubts resolved in 

favor of remand.” Eastman, 438 F.3d at 549-50 (alteration in 

original) (internal citations omitted). 

A successful claim under the Kentucky Civil Rights Act 

entitles a plaintiff to “actual damages.” K.R.S. § 344.450. 

“Actual damage is most appropriately defined as all those 

damages directly and naturally resulting, in the ordinary course 

of events, from the injury in question.” Mitchell v. Seaboard 

Sys. R.R., 883 F.2d 451, 453 (6th Cir. 1989) (internal citation 

omitted). Actual damages include broader relief than Title VII. 

Id. at 454 (internal citation omitted). Actual damages include 

back pay, front pay, lost benefits, humiliation, emotional 

distress, embarrassment, and attorney’s fees. Williamson v. 

Aetna Life Ins. Co., 481 F.3d 369, 376 (6th Cir. 2007); 

Mitchell, 883 F.2d at 452-53; Meyers v. Chapman Printing Co., 

Inc., 840 S.W.2d 814, 817 (Ky. 1992) (internal citation 

omitted). 

It is appropriate to consider back pay beyond the time of 

removal when a plaintiff seeks an award for back pay that 

includes future accruals. Weaver v. A.T.&T. Corp., 2010 WL 

2521462, at *2 (W.D. Ky. June 18, 2010) (citing Gafford v. Gen. 

Elec., 997 F.2d 150, 160-61 (6th Cir. 1993)). There is no 

statutory limit on damages for “emotional distress” under the 
No. 13-5747

Rebecca Shupe v. Asplundh Tree Expert Company

- 7 -

Kentucky Civil Rights Act. Childers Oil Co., Inc. v. Adkins, 

256 S.W.3d 19, 28 (Ky. 2008). 

Claims for punitive damages should be included in the 

amount-in-controversy, “unless it is apparent to a legal 

certainty that such cannot be recovered.” Hayes v. Equitable 

Energy Res. Co., 266 F.3d 560, 572 (6th Cir. 2001) (internal 

citation omitted). Punitive damages are not available under the 

Kentucky Civil Rights Act. Kentucky Dep’t of Corr. v. 

McCullough, 123 S.W.3d 130, 139-40 (Ky. 2003). 

Punitive damages are available against a defendant who 

acted grossly negligently toward a plaintiff. Kinney v. 

Butcher, 131 S.W.3d 357, 358-59 (Ky. Ct. App. 2004). “[T]he 

prevailing understanding defines gross negligence as a ‘wanton 

or reckless disregard for the safety of other persons.’” Id. 

“It is not necessary that the jury find the defendant to have 

acted with express malice; rather, it is possible that a certain 

course of conduct can be so outrageous that malice can be 

implied from the facts of the situation.” Id. Punitive damages 

must be proven by clear and convincing evidence under Kentucky 

law. K.R.S. § 411.184(2).

B. The District Court Properly Determined that 

Plaintiff’s Claims Exceeded $75,000.00.

In compliance with Kentucky Rule of Civil Procedure 

8.01(2), Shupe’s complaint does not state an amount in 
No. 13-5747

Rebecca Shupe v. Asplundh Tree Expert Company

- 8 -

controversy. She alleges that her damages exceed the minimum 

amount necessary to confer jurisdiction on the Fayette County 

Circuit Court. The minimum amount necessary to confer 

jurisdiction in Fayette County is $5,000.00. 

Shupe’s complaint alleges that she suffered damages for

“embarrassment, physical pain and suffering, and emotional 

distress, requiring [her] to incur medical treatment and 

expenses for same” as a result of Asplundh’s failure to stop the 

sexual harassment to which she was subjected. The complaint 

alleges that Shupe is entitled to damages for “loss of wages and 

employment benefits, and that she continues and will continue to 

suffer said damages . . .” due to her wrongful termination.

Shupe alleges that Asplundh “falsely accus[ed] her of 

knowing of the wrongful conduct of Defendant’s supervisor 

concerning Defendant’s property.” That conduct was allegedly

“grossly negligent, outrageous, extreme, intentional, [and] 

designed to hold her in false light to others within the company 

and done with such reckless disregard to the Plaintiff, 

entitling her to [p]unitive damages.” Shupe alleges that she is 

entitled to attorney’s fees.

Defendant-Appellee’s Notice of Removal states the following 

specific facts about the amount in controversy. Shupe was laid 

off in August 2011. She was working approximately 42.5 hours a

week when she was terminated. Her pay rate was $15.00 an hour. 
No. 13-5747

Rebecca Shupe v. Asplundh Tree Expert Company

- 9 -

Shupe could have earned approximately $34,123.00 if she had 

remained employed from August 2011, to September 10, 2012, when 

the action was removed.

Asplundh alleges that trial would not occur until September 

2013. Shupe would then be seeking more than two years of back 

pay. Two years of unmitigated back pay would be approximately 

$68,250.00. Asplundh alleges that this figure and “Plaintiff’s 

request for punitive damages, damages for ‘actual damages’ of 

emotional distress, humiliation, or embarrassment” and 

attorney’s fees total more than $75,000.00.

The district court agreed with Asplundh’s damages 

calculation and found by a preponderance of the evidence that 

Shupe’s claim for damages exceeded $75,000.00. The calculation 

of Shupe’s backpay appropriately included accruals through the 

projected trial date, because she alleged that “she continues 

and will continue to suffer” damage from her loss of wages. See 

Weaver, 2010 WL 2521462, at *2 (citing Gafford, 997 F.2d at 160-

61) (“[Plaintiff] seeks back pay ‘for wages and other monetary 

damages incurred and to be incurred in the future.’ . . . Thus, 

because at the time of removal [Plaintiff] sought an award for 

back pay that included future accruals, it is appropriate to 

consider back pay beyond the time of removal.”) Shupe’s damages 

for humiliation, embarrassment, and attorney’s fees would be in 

addition to that amount. 
No. 13-5747

Rebecca Shupe v. Asplundh Tree Expert Company

- 10 -

Shupe alleges that she is entitled to punitive damages for 

Asplundh’s grossly negligent conduct. Although she is not 

entitled to punitive damages under the Kentucky Civil Rights 

Act, a fair reading of Shupe’s complaint demonstrates that she 

brings additional claims for gross negligence. Shupe alleges 

that Asplundh’s conduct was outrageous and extreme. If Shupe 

presented evidence of that conduct, she could show that Asplundh 

was grossly negligent. A plaintiff must prove punitive damages 

by clear and convincing evidence. K.R.S. § 411.184(2). That 

standard does not amount to a legal certainty. 

Evaluating Shupe’s request for damages, it is more likely 

than not that the amount in controversy is at least $75,000.00. 

The district court did not err in its calculation of the amount 

in controversy. 

C. Neither the Pre-Suit Demand Letter nor the

Subsequent Affidavit Changes Our Analysis

Shupe relies on her pre-suit settlement demand letter to 

show that she does not seek more than $75,000.00 in damages. 

The letter states that “Ms. Shupe will waive all claims and 

causes of actions arising out of this wrongful termination 

matter against Asplundh Company, in exchange for the Company 

paying Ms. Shupe her salary through August 31, 2012, back-dated 

to her date of termination, commencing immediately.” The letter 

states that Shupe will “need to be reimbursed for the value of 
No. 13-5747

Rebecca Shupe v. Asplundh Tree Expert Company

- 11 -

the company’s medical, dental, and other insurance benefits she 

did not receive.” Alternatively, “Ms. Shupe will consider 

taking a lump sum cash payment in the sum of $60,000.00 . . . .”

“It is settled that, in ascertaining the amount in 

controversy for jurisdictional purposes, where the law gives the 

rule, the legal causes of action, and not the plaintiff’s 

demand, must be regarded.” Smith v. Phillips & Jordan, Inc., 

2011 WL 250435, at *2 (E.D. Ky. January 24, 2011) (internal 

quotations and citations omitted). “[A] settlement demand 

letter is ‘some evidence’ regarding the amount in controversy.” 

Id. (emphasis in original) (internal citation omitted) “[T]he 

fact that Plaintiff attempted to settle the claim for less than 

the amount in controversy is not probative of the true amount 

because litigants often settle claims for less than the amount 

in controversy.” Hollon v. Consumer Plumbing Recovery Ctr., 417 

F.Supp.2d 849, 854 (E.D. Ky. 2006) (internal citations omitted). 

“[A]n offer falling just below the jurisdictional threshold

tends to suggest that the amount in controversy exceeds this 

threshold, especially since parties ‘routinely offer and accept 

settlement amounts significantly below the total amount placed 

into controversy . . . .’” Osborne v. Pinsonneault, 2007 WL 

710131, at *2 (W.D. Ky. March 2, 2007) (quoting Sayre v. Potts, 

32 F.Supp.2d 881, 888 (S.D.W. Va. 1999). 
No. 13-5747

Rebecca Shupe v. Asplundh Tree Expert Company

- 12 -

Shupe’s settlement demand letter requested a lump sum of 

$60,000.00 to cover her lost pay and benefits. That falls below 

the federal jurisdictional limit of $75,000.00. It does not 

take into account the request in her complaint for damages for 

embarrassment, humiliation, or emotional distress, or for 

punitive damages or attorney’s fees. Shupe’s settlement demand 

letter is not inconsistent with the district court’s finding 

that her claims meet the federal amount-in-controversy 

requirement.

Shupe also relies on her post-suit affidavit to limit the 

amount of damages she seeks. Shupe states that, “I have never 

believed or been led to believe that I could recover or receive 

more than $75,000 . . . by asserting this lawsuit.” She also 

states that, “I have never demanded, claimed, requested or 

otherwise indicated in any way to any person that I seek or 

desire more than $75,000 . . . to settle or compromise this 

lawsuit.” Finally, Shupe states that, “I have never sought more 

than $75,000 . . . for any and all claims which could be, or 

have been raised in this lawsuit.” 

“[A] post-removal stipulation [or affidavit] reducing the 

amount in controversy to below the jurisdictional limit does not 

require remand to the state court.” Rogers v. Wal-Mart Stores, 

Inc., 230 F.3d 868, 872 (6th Cir. 2000). A plaintiff may 

stipulate to a claim less than the federal jurisdictional amount 
No. 13-5747

Rebecca Shupe v. Asplundh Tree Expert Company

- 13 -

“where a plaintiff provides specific information about the 

amount in controversy for the first time . . . .” Egan v. 

Premier Scales & Sys., 237 F.Supp.2d 774, 778 (W.D. Ky. 2002). 

That is a clarification rather than a reduction of the amount in 

controversy. Id. at 778. “[O]nly unequivocal statement[s] and 

stipulation[s] limiting damages will serve this purpose.” Id. 

An actual limitation on the amount of a potential judgment “is 

essential to any such stipulation.” Id. “To merely say that 

one will not accept money in excess of a certain amount limits 

neither the judgment nor the demand.” Id. 

The district court in Egan found that the statement that 

the plaintiff “will accept a sum of $74,999 exclusive of 

interest and costs as a judgment regardless of what any court 

finds in excess of that amount” was not an unequivocal 

stipulation. Id. at 775, 778. The same district court found 

that the statement that the plaintiff “hereby certifies to the 

Court that he will not be making a claim nor pursuing damages in 

amount equal to or exceeding the sum of $75,000.00” was an 

unequivocal stipulation limiting damages. Van Etten v. Boston 

Scientific Corp., 2009 WL 3485909, at *1 (W.D. Ky. Oct. 23, 

2009). That district court did find that the statement that the 

plaintiff “will not seek or accept an award of damages in excess 

of $74,999.00 inclusive of punitive damages, attorney’s fees, 

and the fair value of any injunctive relief” was an unequivocal 
No. 13-5747

Rebecca Shupe v. Asplundh Tree Expert Company

- 14 -

stipulation limiting damages. Spence v. Centerplate, 931 

F.Supp.2d 779, 780, 782 (W.D. Ky. 2013) (emphasis in original).

Counsel for Shupe argued that there was no guidance about 

the words a post-suit limitation on damages should contain when 

Shupe filed her affidavit. That argument is not well taken. 

Both Egan and Van Etten were decided before Shupe filed her 

complaint in Kentucky court. None of the statements in Shupe’s 

post-suit affidavit is an unequivocal limitation on damages. 

None of her statements is an actual limit on the potential 

judgment she would receive. All of Shupe’s statements are 

backward looking. She does not mention the potential judgment 

in her case at all. Her post-suit affidavit is not an 

unequivocal statement limiting her damages to an amount below 

the jurisdictional limit. The district court did not err in 

denying Shupe’s motion for remand. 

III.

We now turn to the merits of the district court’s summary 

judgment order. The granting of a motion for summary judgment

is reviewed de novo. Tysinger v. Police Dep’t of City of 

Zanesville, 463 F.3d 569, 572 (6th Cir. 2006). 

Waivers of statutes of limitations are valid and 

enforceable under Kentucky law. Dunn v. Gordon Food Servs., 

Inc., 780 F.Supp.2d 570, 573 (W.D. Ky. 2011) (citing Edmondson 

v. Pa. Nat. Mut. Cas. Ins. Co., 781 S.W.2d 753, 755-56 (Ky. 
No. 13-5747

Rebecca Shupe v. Asplundh Tree Expert Company

- 15 -

1989)). “[T]his Court determined that there is nothing 

inherently unreasonable about a six-month limitations period 

contained in an employment agreement.” Thurman v. 

DaimlerChrysler, Inc., 397 F.3d 352, 357 (6th Cir. 2004) 

(internal quotations and citation omitted). Kentucky’s highest 

court has held that a six-month limitations period is 

reasonable. Ashland Fin. Co. v. Hartford Acc. & Indem. Co., 

474 S.W.2d 364, 366 (Ky. 1971) (internal citation omitted). 

Shupe does not dispute the enforceability of a statute-oflimitations waiver. She admits that she signed the Waiver at 

issue. Shupe argues that her acceptance of the Waiver was not 

“knowing and voluntary.” 

“In evaluating whether a [waiver] has been knowingly and 

voluntarily executed, we look to (1) plaintiff’s experience, 

background, and education; (2) the amount of time the plaintiff 

had to consider whether to sign the waiver, including whether 

the employee had an opportunity to consult with a lawyer; 

(3) the clarity of the waiver; (4) consideration for the waiver; 

as well as (5) the totality of the circumstances.” Morrison v. 

Circuit City Stores, Inc., 317 F.3d 646, 668 (6th Cir. 2003) 

(internal quotations and citation omitted).

The record contains no evidence about Shupe’s education or

experience. Courts have upheld statute-of-limitations waivers 

when the plaintiff had only a high school education. Sako v. 
No. 13-5747

Rebecca Shupe v. Asplundh Tree Expert Company

- 16 -

Ohio Dept. of Admin. Servs., 278 F. App’x 514, 518 (6th Cir. 

2008); Dunn, 780 F.Supp.2d at 577 (internal citations omitted). 

Without more, this factor is neutral. 

Shupe has stated that she “was presented several documents 

and directed to sign them, which were not explained to me nor 

did I understand what or why I was signing said documents other 

than I was told I had to sign said documents in order to obtain 

employment with the Defendant.” (Shupe Aff. ¶ 2.) Shupe stated 

that, “I was not allowed an opportunity to have [the Waiver] or 

other documents I was forced to sign in order to obtain 

employ[ment] reviewed by an attorney of my choosing.” (Id. ¶ 

3.) Shupe stated that, “I was never provided a copy of the 

Waiver or any other document I was required to sign . . . .” 

(Id. ¶ 4.) 

There is no evidence that Shupe asked for more time to 

complete the Waiver or to speak to an attorney. There is no 

evidence that Shupe indicated she did not understand the terms 

of the Waiver when she signed it. There is no evidence that 

Shupe asked for a copy of the Waiver after she signed it. There 

is no evidence of fraud when Shupe signed the Waiver.

“In general, a person who has the opportunity to read a 

contract, but does not do so and signs the agreement, is bound 

to the contract terms unless there was some fraud in the process 

of obtaining his signature.” Aytes v. Federal Exp. Corp., 2012 
No. 13-5747

Rebecca Shupe v. Asplundh Tree Expert Company

- 17 -

WL 1831272, at *13 (E.D. Ky. May 18, 2012) (citing Cline v. 

Allis-Chalmers Corp., 690 S.W.2d 764, 766 (Ky. 1985)). This 

Court has held that a plaintiff “had an obligation to seek 

assistance before she signed if she felt she did not understand 

the application.” Reid v. Sears, Roebuck and Co., 790 F.2d 453, 

461 (6th Cir. 1986). This Court has upheld a statute-oflimitations waiver when “[t]he [district] court also noted that 

despite [the plaintiff’s] claim that he was given only a few 

minutes to decide whether or not to sign the waiver, there was 

no indication that he had requested more time to consider the 

situation or that he was pressured into signing the agreement.” 

Sako, 278 F. App’x at 519. “Even assuming the verification of 

[the plaintiff’s] . . . inability to consult an attorney, 

standing alone these facts do not show lack of knowledge [or] 

voluntariness.” Dunn, 780 F.Supp.2d at 577. In the absence of 

any evidence that Shupe requested more time to review the 

Waiver, indicated she did not understand the Waiver, or asked 

for time to have an attorney review the Waiver, this factor 

weighs in favor of Shupe’s having knowingly and voluntarily 

executed the Waiver. 

The district court found that “[t]he waiver is quite clear, 

both in content and in form. The font directing the reader’s 

attention is bold and capitalized, and the font containing the 

actual language of the waiver is clear from a normal reading 
No. 13-5747

Rebecca Shupe v. Asplundh Tree Expert Company

- 18 -

distance. The language itself is relatively plain and clear.” 

(Order on Mot. Summ. Judg. at 4, ECF No. 16.) Shupe does not 

dispute that the font is appropriate and that the language is 

clear and unambiguous. 

The Eastern District of Kentucky has upheld a waiver that 

stated: “To the extent the law allows an employee to bring legal 

action against Federal Express, I agree to bring that complaint 

within the time prescribed by law or 6 months from the date of 

the event forming the basis of my lawsuit, whichever expires 

first.” Aytes, 2012 WL 1831272, at *12. The language in 

Asplundh’s Waiver is similar to the language in Aytes. This 

factor weighs in favor of Shupe’s knowing and voluntary 

execution of the Waiver.

Shupe does not dispute that there was consideration for 

Asplundh’s Waiver. Asplundh provided consideration when it

employed Shupe and paid her wages. Dunn, 780 F.Supp.2d at 574. 

This factor weighs in favor of Shupe’s knowing and voluntary 

execution of the Waiver.

Shupe argues that the cases in which courts have upheld 

statute-of-limitations waivers have turned on “the negative 

circumstances presented in [her] case in isolation, as opposed 

to a combination of all of them in one case . . . .” To the 

contrary, the court in Dunn upheld a statute-of-limitations 

waiver where the plaintiff allegedly “received only a high 
No. 13-5747

Rebecca Shupe v. Asplundh Tree Expert Company

- 19 -

school education, was given insufficient time to review the 

Application, and was unable to consult an attorney before 

signing [the waiver].” 780 F.Supp.2d at 577. Shupe’s argument 

is not well taken.

Shupe also relies on this Court’s decision in Walker v. 

Ryan’s Family Steak Houses, Inc., 400 F.3d 370 (6th Cir. 2005). 

This Court held that an arbitration agreement was not knowingly 

and voluntarily signed when:

Plaintiffs typically were hired on the spot after a 

brief interview, during which the hiring manager 

hurriedly presented them with various documents that 

they were instructed to sign in order to be considered 

for a job. According to one . . . plaintiff, Ryan’s 

managers would place an ‘x’ in every spot an applicant 

is required to sign, and applicants would be told to 

sign every ‘x’ without any explanation. The hiring 

manager usually would not mention the arbitration 

agreement, and Plaintiffs had no opportunity to take 

the Arbitration Agreement home or consult an attorney,

even though the agreement purports to afford them that 

right. . . . Plaintiffs were given no option to revoke 

their consent to the Arbitration Agreement.

Id. at 381-82. 

Walker is distinguishable for three reasons. The waiver of 

an arbitration agreement involves a substantive right to a 

judicial forum. Id. at 382. The shorter statute of limitations

here involves a procedural right. Aytes, 2012 WL 1831272, at 

*13. The waiver in Walker was contained in a twelve-page 

application packet that contained five pages of single-spaced 

rules and procedures governing the arbitration procedure. 
No. 13-5747

Rebecca Shupe v. Asplundh Tree Expert Company

- 20 -

Walker, 400 F.3d at 373. The Waiver in this case was a single 

page and was clear and direct. The management in Walker also 

provided misleading information about what the arbitration 

agreement meant. Id. at 382. Shupe has not provided any 

evidence that Asplundh attempted to mislead her in any way. 

Walker is not controlling or persuasive in this case. 

Shupe also argues that Asplundh should have provided her 

with a copy of the Waiver when she was terminated in August 

2011. An employer is not required to provide an employee with 

notice of a statute-of-limitations waiver at the time of 

termination. “One who signs a contract cannot seek to avoid it 

on the basis that he did not read it or that he supposed it was 

different in its terms.” Mannix v. Cnty. of Monroe, 348 F.3d 

526, 533 (6th Cir. 2003). This factor weighs in favor of 

Shupe’s knowing and voluntary execution of the Waiver.

The district court did not err in deciding that Shupe 

knowingly and voluntarily signed the Waiver. There is no 

genuine dispute of material fact about the validity of the 

Waiver. Shupe did not bring her claims within six months of her 

termination. The district court did not err in granting

Asplundh’s motion for summary judgment.

IV.

The district court properly found that the amount in 

controversy exceeded $75,000.00. The district court’s order 
No. 13-5747

Rebecca Shupe v. Asplundh Tree Expert Company

- 21 -

denying Shupe’s motion to remand is AFFIRMED. The district 

court properly found that Shupe knowingly and voluntarily signed 

the six-month statute-of-limitations waiver. The district 

court’s order granting Asplundh’s motion for summary judgment is 

AFFIRMED.