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### STATE OF MICHIGAN

COURT OF APPEALS

WILLIAM SAMS,

Plaintiff-Appellant, UNPUBLISHED January 31, 2017

v No. 329600
Genesee Circuit Court COMMON GROUND, LC No. 15-104205-CD

Defendant-Appellee.

Before: B ECKERING , P.J., and S AWYER and S AAD , JJ.

P ER C URIAM

.

In this employment discrimination claim, plaintiff appeals the trial court’s order that granted defendant’s motion for summary disposition on the groun ds that plaintiff’s claim was time barred by the contractual limitation period of one year. For the reasons stated below, we
affirm.

I. BASIC FACTS

The relevant facts for the issues on appeal are brief and are not in dispute. 1 On August 15, 2011, plaintiff applied for employment with defendant and a greed to be bound by the following:

In consideration of my employment , I agree to conform to the ru les and policies of Common Ground. Also, I agree not to begin any action or law suit relating directly or indirectly to employ ment with Common Ground more th an one (1) year after the earlier of (a) the incident or event giving rise to such action or lawsuit or (b) the date of the t ermination of such employment. I waive any statute of limitations to the contrary.

Defendant subsequently hired plaintiff.

1 Because the sole issue is whether plaintiff contractually waiv ed the statutory three-year statute of limitations, the facts underl ying plaintiff’s specific civil rights claim are not relevant.-2- On July 27, 2012, defendant notified plaintiff in a letter tha t his position would change from “Crisis Interventionist 1” to “Recovery Coach” effective A ugust 5, 2012. This change would lower plaintiff’s hourly r ate and other fringe benefits. The letter had a place for plaintiff to sign to show his acceptance of the changes to his employment , and plaintiff signed it on August 2, 2012. However, on September 21, 2012, plaintiff advi sed defendant that he was resigning and that his last day of employment would be Septembe r 30, 2012.

Plaintiff filed suit against defendant on February 5, 2015, ap proximately 2-1/2 years after resigning, and alleged that def endant violated the Persons with Disabilities Civil Rights Act, MCL 37.1101, et seq. Plaintiff alleged that defendant’s actions forced him to resi gn, which
constituted a constr uctive discharge.

Defendant moved for summary disposition under MCR 2.116(C)(7) and argued that plaintiff’s claim was time barred because plaintiff waived the statutory three-year period of limitations and agreed to be bound by a one-year period, as sta ted in his employment application. Plaintiff argued that the application did not apply because, wh en he was offered the new positon with defendant, they did not inc orporate the terms of the prior application. Plaintiff also argued that, in any event, the provision shortening the limitations pe riod was not enforceable because it was unconscionable. The trial court agreed with defendant and granted the motion for summary disposition.

II. STANDARD OF REVIEW

We review de novo a trial court’s a grant or denial of a motio n for summary disposition. Dybata v Wayne Co , 287 Mich App 635, 638; 791 NW2d 499 (2010). Summary disposit ion is appropriate under MCR 2.116(C)(7) when a claim is barred by the applicable statute of limitations. When considering a motion brought under this subr ule, “the trial court must consider any affidavits, deposit ions, admissions, or other docu mentary evidence submitted by the parties to determine whether there is a genuine issue of materi al fact precluding summary disposition.” Id. at 637. In doing so, a court mu st consider the evidence in th e light most favorable to the nonmoving party. Moraccini v City of Sterling Heights , 296 Mich App 387, 391; 822 NW2d 799 (2012). “If no facts are in dispute, or if r easonable minds could not differ regarding the legal effect of t hose facts, then the question wh ether the claim is barred . . . is an
issue of law.” Dybata , 287 Mich App at 637.

Our review of the proper interp retation of a contract also is a matter of law that we
review de novo. Burkhardt v Bailey , 260 Mich App 636, 646; 680 NW2d 453 (2004).

III. ANALYSIS

As noted above, as a condition of his employment, plaintiff ag reed, in writing, to not bring an employment-related laws uit against defendant unless he filed his suit within one year of his termination. Further, he expressly agreed to waive the sta tutory limitation period to bring
suit. And he testified that he read and understood all the ter ms of his agreement and that if he did not understand them, he had the opportunity to ask for clar ification.

Under the foregoing facts and pursuant to well-established Mic higan precedent, plaintiff is bound by his agreement regard ing the limitation of action pr ovision. Indeed, our Court has-3- ruled that a virtually identic al provision is binding under Mic higan law and that this limitation provision does not violate public policy. Accordingly, plainti ff is bound by his agreement and
his claim is time barred and the defenses he raises to the appl icability of this provision, which we discuss below, are unavailing.

A. APPLICABILITY OF THE APPLICATION

Plaintiff argues that the provision in the application that sh ortened the amount of time he could bring an action against def endant lacks “any contractual significance.” We disagree.

Although plaintiff does not deny signing the application, he c ontends that his signature merely reflects that he read a nd understood the terms contained in the application—not that he actually agreed to them. Plaintiff points out that the locatio n where he signed the application states, “My signature below indicates that I have read and understood the above paragraphs.” (Emphasis added.) However, plai ntiff ignores the key and contr olling language he agreed to:

In consideration of my employment, I agree to conform to the rules and policies of Common Ground. Also, I agree not to begin any action or lawsuit relating directly or indirectly to employ ment with Common Ground more th an one (1) year after the earlier of (a) the incident or event giving rise to such action or lawsuit or (b) the date of the termination of such employment. I waive any statute of limitations to the contrary. [Emphasis added.]

Accordingly, plaintiff’s signature represents that he understo od and agreed not to begin any action against defendant after one year has passed. Furthe r, he understood that he waived the application of the otherwise applicable statute of limitati ons. As a result, we find plaintiff’s argument that he did not actua lly agree to anything in the appl ication to be without merit. The
facts mandate otherwise. 2

2 Plaintiff also claims that because the application has languag e in it that states that the “application for employment shall be considered active for sixt y (60) days,” any such agreements he made were no longer enforceable after 60 days had passed. F irst, we note that the language does not state that the terms of the application were to be voi d after 60 days. Instead, it merely provides that plaintiff will be considered for employment for 6 0 days. This subtle difference is important. Moreover, the language makes it perfectly clear tha t plaintiff’s agreement to the terms was consideration for any employment with defendant. No reasonable reading of the application shows that the consid eration he was giving was only to last for 60 days. Indeed, such a reading would make the salient terms of the agreement nugator y because if the terms were void after 60 days, then the agreement never would be able to effect uate the one-year limitation period. When interpreting such c ontractual documents, we are t o “give effect to every word, phrase, and clause . . . and avoi d an interpretation that would render any part of the contract surplusage or nugatory.” Klapp v United Ins Group Agency, Inc , 468 Mich 459, 468; 663 NW2d 447 (2003). Therefore, we reject p laintiff’s claim that he was no longer bound by his agreements after 60 days had lapsed. Plaintiff makes a related argument t hat any consideration given by-4- Plaintiff also says that because he subsequently “applied” for a new position with defendant, the original application is not relevant and therefo re not enforceable. Plaintiff relies
on the letter that he received f rom defendant that notified him that his duties would change.

Contrary to plaintiff’s contention, the record shows that he d id not “apply” for this new position. Instead, as employers have the right to do, defendan t made changes to plaintiff’s duties and related compensation. The letter merely served to confirm plaintiff’s acquiescence and acknowledgment of the cited change s regarding his employment. Because plaintiff remained employed by defendant at all relevant times, his agreement to p rovide consideration for his employment also remained in force. In brief, there is nothing in the agr eement he signed that suggests that any consideration was only valid for a particular position while employed at defendant. Again, it is important that the record shows that p laintiff remained employed by defendant throughout this change; plaintiff’s employment was ne ver terminated such that he had to re-apply for employment.

B. UNCONSCIONABILITY

Plaintiff argues that regardless of the applicability of the a pplication, the term reducing the amount of time to bring an action under the Persons with Di sabilities Civil Rights Act is unconscionable and therefore not enforceable. We disagree.

Michigan law is clear on this point: An unambiguous contractu al provision is to be given full effect unless the provision violates law or public policy, or a traditional contract defense, such as unconscionability. Rory v Continental Ins Co , 473 Mich 457, 470; 703 NW2d 23 (2005). Here, plaintiff claims that the provision in the application th at limits the period of time to bring an action against defenda nt is unconscionable.

In order for a contract or cont ract provision to be considered unconscionable, both procedural a nd substantive unconscionabili ty must be present. Procedural unconscionability exists where the weaker party had no realistic alternative to accepta nce of the term. If, under a f air appraisal of the circumstances, the weaker party w as free to accep t or reject th e term, there was no procedural unconscionability. S ubstantive unconscionability ex ists where the challenged term is not substantively reasonable. However, a co ntract or contract provision is not invariably substa ntively unconscionable simply because it is foolish for one party and very advantageous to the other. Inst ead, a term is substantively unreasonable where the inequity of the term is so extreme as to shock the conscience. [ Clark v DaimerChrysler Corp , 268 Mich App 138, 143- 144; 706 NW2d 471 (2005) (citations omitted).]

defendant in return for plaintiff’ s wavier was illusory and the refore he is not bound by the waiver. This position is meritless. This Court has specifical ly addressed this contention and rejected it because an employee’s waiver of such a statutory ri ght in an application is supported by consideration by the defendant employer through the employme nt, itself, and the accompanying wages. Timko v Oakwood Custom Coating, Inc , 244 Mich App 234, 244; 625 NW2d 101 (2001).-5- Michigan case law directly rejects plaintiff’s position. In Clark , this Court held that the plaintiff’s agreement in an employment application to reduce th e amount of time to bring a suit related to employment is enforceable, because it does not viola te the law, or public policy and is thus, not unconscionable. Id. at 142-144. Regarding unconscionability, the Court further no ted that the plaintiff presented no evidence that he had no realist ic alternative to employment with
the defendant. Id. at 144. As such, although the p laintiff had unequal bargainin g power with defendant, the Court could not c onclude that the “plaintiff lac ked any meaningful choice but to accept employment under the terms dictated by defendant.” Id. The same holds true here. Plaintiff has not offered any evidence to show that he had to a ccept employment with defendant. Thus, the fact that defendant essentially made the terms of the application a precondition to employment does not rise to the l evel of procedural unconsciona bility. Further, the Courts in

Clark , 268 Mich App at 144, and Timko , 244 Mich App at 243, ruled that reducing the limitations period to 180 days or six months is not substantive ly unconscionable. 3 Further, as here, Clark and Timko both dealt with shortened periods to bring an employment discr imination
claim. Clark , 268 Mich App at 140, 144; Timko , 244 Mich App at 237; see also Hicks v EPI
Printers, Inc , 267 Mich App 79, 84, 91; 702 NW2d 883 (2005). Therefore, bec ause we found the shortened periods in Hicks (one year) and Clark and Timko (six months) to be reasonable and not unconscionable, is it is clear that here, one year is not s ubstantively unconscionable.

We would note that the Hicks Court cautions that the “[w]aive r of a statutory period of limitations for a civil rights claim is subject to heightened j udicial scrutiny that asks if the waiver was knowing, intelligent, and voluntary.” Hicks , 267 Mich App at 91. Again, as noted above, in his deposition, plaintiff was asked specifically if he read the application and understood all of its terms. He replied that he did. As a result, we find that plai ntiff’s waiver was indeed knowing, intelligent, and voluntary. Moreover, had plaintiff not admitt ed that he read and understood the terms, his signing of the appli cation, absent any coercion, mis take, or fraud, is sufficient to show that it was knowing, intelligent, and voluntary. See Clark , 268 Mich App at 144-145.

C. CONCLUSION

Plaintiff’s agreement to waive the statutory limitations perio d and replace it with a oneyear period is valid under well-established Michigan law. Acco rdingly, plaintiff’s suit, which was filed more than one year after his employment was terminate d with defendant, was not timely, and the trial court properly granted defendant’s motion for summary disposition pursuant to MCR 2.116(C)(7).

3 The Court in Hicks upheld a one-year period to bring claims as not unconscionable

. Hicks , 267 Mich App at 91.-6- Affirmed. Defendant, as the pr evailing party, may tax costs p ursuant to MCR 7.219.

/s/ Jane M. Beckering /s/ David H. Sawyer /s/ Henry William Saad